Case Document

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HCAL 89/2024

[2026] HKCFI 5155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 89 OF 2024

BETWEEN

	Batuwanage alias Ihalagedara Hettiarachchige Pathma Sriyakanthi	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 53-year-old national of Sri Lanka who last arrived in Hong Kong on 29 November 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 1 December 2020, she did not depart and instead overstayed, and on 11 January 2022 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Sri Lanka she would be harmed or killed by her brother-in-law over their land dispute in her home village.

2.The Applicant was born and raised in Deraniyagala, Kegalle, Sri Lanka. After leaving school she married her husband and raised a family with 2 children in her home district.

3.In 1998 she started working as a domestic servant in Lebanon and Kuwait before returning home in Indonesia in 2001 when her husband’s health deteriorated and subsequently became paralyzed from a fall, and eventually passed away in 2011, whereupon the Applicant stood to inherit their home which her husband had inherited from his father.

4.However, his brother started to raise issue with the title of the property by claiming that he should be entitled to inherit the property within the family, and threatened to drive the Applicant out of her house, and on one occasion he struck one of the windows of the house so hard that it sheltered and the broken glass injured the Applicant’s legs which required medical treatments.

5.To avoid further threats from her brother-in-law and in order to make her own living, the Applicant therefore applied to work as a foreign domestic helper in Hong Kong, which she did in October 2012 when she arrived to start her employment, during which her brother-in-law had continued to make threats that he would kill her if she returned to Sri Lanka to claim her husband’s property.

6.As a result the Applicant became fearful for her life, and so after her last employment was prematurely terminated in December 2020, she was afraid to return to Sri Lanka and therefore overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 May 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 7 June 2022 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her brother-in-law upon her return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her brother-in-law to seriously harm or kill her other than to deter from making any claim for the property, that in any event it was a private land dispute between her and her brother-in-law only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 23 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Kandy or Trincomalee where it would be difficult if not impossible for her brother-in-law to locate her.

9.On 17 June 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 13 July 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1] the Board accepted the Applicant’s claim of threats from her brother-in-law over their land dispute but found no reliable evidence of any real intention of her brother-in-law to seriously harm or kill her other than to deter her from making any claim for the property in dispute, and that in any event it was a private land dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Sri Lanka if resorted to as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her brother-in-law that her claim for non-refoulement protection failed on all applicable grounds.

11.On 8 January 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she just repeated her claim as before of fear of harm from her brother-in-law upon her return to her home country but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Sri Lanka, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.Moreover, the Applicant has recently on 14 July 2026 in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to Sri Lanka as soon as possible.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more issue for her to return to her home country, I accordingly dismiss her leave application.

Dated the 15^th day of September 2026

(Chung Lai Fan, Christine)
for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 15 September 2026 Batuwanage alias Ihalagedara Hettiarachchige Pathma Sriyakanthi Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15 September 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 20471 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 323/22 (formerly RBCZ 5000244/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)