Fernando Thushari Deepthika v. Torture Claims Appeal Board
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HCAL 1074/2024 [2026] HKCFI 5780 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1074 OF 2024 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 8 July 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 21 June 2024 (“the Board’s 2024 Decision”). The Board’s 2024 Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 31 October 2014 (“the Director’s 2014 Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim on the said three grounds. 3.The Director further assessed the applicant’s BOR 2 Risk[4] and rejected the applicant’s non-refoulement claim regarding BOR 2 Risk by way of his Further Decision dated 7 July 2017 (“the Director’s 2017 Decision”). By way of the Board’s decision dated 6 September 2019 (“the Board’s 2019 Decision”), the Board rejected the applicant’s application for non-refoulement protection on the ground of BOR 2 Risk and confirmed the Director’s 2017 Decision. The applicant did not make any further application in relation to the Board’s 2019 Decision. Thus, the applicant’s BOR 2 Risk had been assessed and finally disposed of. Amendment 4.The applicant named the Board / Non-refoulement Claims Petition Office as the putative respondent in Form 86, when only the Board should be so named. 5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”. Procedural history of the applicant’s non-refoulement claim 7.The applicant first appealed/petitioned to the Board against the Director’s 2014 Decision on 12 November 2014. By way of the Board’s decision dated 8 June 2016 (“the Board’s 2016 Decision”), the Board rejected the applicant’s appeal/petition and confirmed the Director’s 2014 Decision. 8.On 12 October 2016, the applicant applied, out of time, to this court for leave to apply for judicial review of the Board’s 2016 Decision. On 29 June 2018, this court refused to grant an extension of time for the applicant to file the said application. 9.By a Notice of Appeal dated 17 December 2019, the applicant sought to appeal against this court’s refusal of leave to the Court of Appeal. 10.On 19 October 2021, the Court of Appeal granted leave to the applicant to apply for judicial review against the Board’s 2016 Decision. 11.On 27 October 2022, this court ordered by consent that the Board’s 2016 Decision be brought up and quashed, and the appeal/petition against the Director’s 2014 Decision was remitted to the Board (differently constituted) for fresh determination. 12.After a reconsideration of the applicant’s case by a differently constituted Board, the Board found that the applicant’s application for non-refoulement protection failed on the grounds of Torture Risk, BOR 3 Risk and Persecution Risk under the USM and confirmed the Director’s 2014 Decision by the Board’s 2024 Decision. 13.The applicant was not satisfied with the Board’s 2024 Decision and made the Leave Application in respect of the same. The applicant’s case 14.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s 2024 Decision, which can be viewed in the hyperlink above. 15.As set out in paragraph 99 of the Board’s 2024 Decision, the applicant’s claims were varied and some had expanded significantly over time. Her initial claims, made in 2009, some three years after her arrival in Hong Kong, were related to a loan from a loan shark. Some four years later, the applicant claimed for the first time that she had been sexually assaulted in Sri Lanka by the police because she had complained about the involvement of Witjith Wijayamuni Zoysa, who was the Provincial Councillor of Monaragala District (“the PC”), in her father’s death. 16.Since that time, the applicant had made much of her claim that when she arrived in Sri Lanka, she would be questioned by the immigration authorities and forced to reveal the circumstances of her departure; she would be unable to obtain a National Identity Card (“NIC”) and, as a result, would be unable to obtain appropriate mental health and medical treatment; she suffered from mental health concerns and medical problems; and as a single woman without protection that she was at risk of gender-based violence. It had been claimed that she was too fearful to obtain state protection and it was unreasonable and unduly harsh for her to relocate within Sri Lanka. Oral hearing 17.The applicant requested for an oral hearing and her case was heard on 8 October 2026. 18.In the applicant’s supporting affirmation dated 8 July 2024, the applicant stated that the Board’s 2024 Decision was not made correctly, and she wished to submit additional grounds soon to support her application. However, the applicant did not submit any additional grounds up to the date of the hearing on 8 October 2026. 19.When this court asked the applicant if she had additional grounds to submit, the applicant replied that she could not do so because she was only informed of the hearing 4 days ago. 20.This court then pointed out to her that the Leave Application was filed in July 2024. Hence, the applicant had more than 2 years to prepare any additional grounds she intended to submit before her case was heard. The applicant said that she did not hire a lawyer, and asked for some more time to submit additional grounds. 21.Having considered the fact that the applicant had already had ample time to submit any additional grounds she might have, this court refused to adjourn the case further and asked the applicant to present to this court her additional grounds for the intended judicial review then. 22.The applicant responded that her problems in her country had not been solved, she did not have anybody in Sri Lanka, she would like to go back with her boyfriend who is also a non-refoulement claimant in Hong Kong. She asked this court to give her time until she could return to her country with him. Grounds for judicial review 23.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 24.The applicant did not advance any grounds for her intended judicial review in Form 86, apart from stating that the Board’s 2024 Decision was substantially unfair and she reserved the right to amend the grounds in due course. As aforesaid, the applicant mentioned in her supporting affirmation dated 8 July 2024 that the Board’s 2024 Decision was not made correctly and she wished to submit additional grounds to support her application. 25.At the oral hearing before this court, the applicant first asked for time to submit additional grounds. Upon refusal by this court, she merely said that her problems in her country had not been solved, she did not have anybody in Sri Lanka, and she would like to go back with her boyfriend. Discussion 26.First of all, the applicant’s mere allegations that the Board’s 2024 Decision was substantially unfair and was not made correctly cannot help her. She did not state why the Board’s 2024 Decision was unfair and not made correctly or how the Board had erred in its consideration of her appeal/petition. 27.With regards to her application to submit additional grounds at an even later time, this court has given reasons for refusal of the said application as stated above. 28.The applicant’s danger arising from her problems in her home country had been assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s 2024 Decision. 29.Her subjective wish to remain in Hong Kong with her boyfriend who is also a non-refoulement claimant, and to return to her country with him, is not a ground for judicial review at all. 30.Thus, what the applicant stated in Form 86 and her supporting affirmation dated 8 July 2024, as well as what she said at the oral hearing before this court, cannot amount to any valid ground to challenge the Board’s 2024 Decision. 31.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 32.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s 2024 Decision for any errors of law, procedural unfairness, or irrationality as aforesaid. 33.In re-assessing the appeal/petition by the applicant, the Board (differently constituted) held an oral hearing on 28 March 2024. The applicant was legally represented and was thus given the chance to present her case to the Board through her legal representative. 34.As can be seen from the Board’s 2024 Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claim for non-refoulement protection on the grounds of Torture Risk, BOR 3 Risk and Persecution Risk. 35.The Board had laid out its consideration of all the aspects of applicant’s claims and evidence in paragraphs 97 to 132 of the Board’s 2024 Decision, and it is not necessary to repeat the same here. 36.In gist, with regards to the general credibility of the applicant, the Board considered she had sought to embellish almost all aspects of her claims to present herself as a woman without family members or any support in Sri Lanka, who was too fearful of interactions with the Sri Lankan authorities and men generally, such that she would be unable to resettle in Sri Lanka, obtain a NIC, or assistance for her mental health and medical problems. The Board did not accept that was an accurate representation of her circumstances. The Board was drawn to the conclusion that whilst there might be some aspects of her claims that were true, overall, they had been manufactured and the applicant was an untruthful and unreliable witness. 37.With regards to the applicant’s initial claim of fear of harm from a loan shark, the Board did not accept the applicant’s explanation for the failure to raise this claim during the several opportunities she had between 2009 (when she raised that claim) and 2024 (when her case was re-assessed by the Board). The Board did not accept that her claims regarding the loan shark were true, and considered that the applicant’s willingness to attempt to rely on a claim she made in 2009, which had not been pursued since that time, was indicative of the applicant’s poor credibility. 38.As to the applicant’s claims in relation to the PC and the police, although the Board accepted that the applicant’s father was electrocuted and died in tragic circumstances, the Board did not accept the basic premise of the applicant’s claims, ie she believed the PC was responsible for her father’s death and she went to the police station to complain. The Board did not accept that the applicant went to the police station to make any reports. It followed that the Board did not accept that the applicant was raped by three police officers whilst she was at the police station complaining about the PC. 39.Although the Board did not accept that the applicant was raped by three police officers, the Board accepted the medical document provided by the applicant indicating that she was subjected to “forceful sexual intercourse”, and thus, the applicant was subjected to some form of sexual assault. However, the Board did not accept that the assault was at the hands of the police, and considered that the applicant had manufactured this claim in 2013, several years after she made her initial application in which she raised an issue relating to a loan shark. 40.The Board considered the applicant’s failure to raise this claim until 2013, several years after her arrival in Hong Kong, to be indicative of the fact that whilst she might have been assaulted in Sri Lanka, it did not occur in the circumstances she claimed. The Board was drawn to the conclusion that several years after the assault, the applicant sought to rely on the unfortunate and traumatic incident to fabricate claims for protection in Hong Kong around a PC and the police. 41.As the Board did not accept that the applicant made a complaint about the PC to the police, resulting in her rape by three police officers, the Board did not accept the events that followed, including: (1) the applicant’s family went to the police to make a complaint; (2) the applicant was followed to a boarding house in an area where she had gone for employment, or that boarding house owner was questioned by the police; (3) the applicant was moving from place to place because she feared harm or that she left Sri Lanka because she feared harm; and (4) the applicant’s family was ever questioned about the complaints. 42.The Board considered it evident that following the unfortunate assault, the applicant moved to another area where she worked for some time, and then made the decision to leave Sri Lanka. The Board was prepared to accept that the applicant might have wished to live in a different environment and that in part motivated her decision to leave Sri Lanka. However, the Board did not accept that she left Sri Lanka because she feared harm and the Board considered that, in all likelihood, the applicant left because she wished to earn a reasonable income as a domestic helper in Hong Kong. 43.With regards to the applicant’s concern of being questioned by the Sri Lankan immigration authorities upon her return, the Board was not satisfied that the applicant, who left her country on her own passport to work as a domestic helper, would be subjected to anything other than routine questioning. As the Board did not accept that she was raped by the police or pursued by the PC, the Board did not accept that there was any information that would be passed on to the police or any others, such that it would result in any adverse consequences for the applicant. 44.The Board also addressed the applicant’s alleged difficulty in obtaining a NIC. The Board did not accept that the applicant was too frightened or too scarred to get a NIC. The Board did not accept that she was without the support of family members and friends. The Board considered that she had manufactured these claims to establish her difficulties in resettling in Sri Lanka. The Board considered it highly unlikely that she had lost contact with all her family members. The Board found her Facebook account indicated that she maintained contact with a large number of persons in Sri Lanka. Further, the Board did not accept that the applicant would be unable to complete the processes required to gain a NIC for the reasons she had claimed. The Board considered her assertions regarding these difficulties were an attempt to embellish her claims for non-refoulement protection. The Board also did not accept that the applicant would be unable to obtain the necessary documents to make an application for a NIC. 45.In relation to the applicant’s mental and physical health issues, the Board did not accept that the applicant would be deprived of a NIC, and that she would be deprived access to assistance for any medical conditions or for her mental health. 46.In addressing the applicant’s assertion that she relied on Chinese medicine at the material time for her medical condition, the Board found it likely that the applicant would be able to obtain Chinese medicine in Sri Lanka, but even if she was not able to do so, the Board was satisfied that she would be able to obtain alternative medicine or Western based medical treatment for her claimed medical problems. 47.In terms of the applicant’s mental health, the Board found that the applicant had not sought any treatment for her mental health in the almost 20 years she had been in Hong Kong. Without wishing to minimize the trauma associated with any sexual assault, the Board was not satisfied there was any evidence indicating that the applicant was experiencing serious or ongoing mental health problems as a result of the assault. The Board was not satisfied that the onus was on the Director to organize a psychiatric or psychological assessment. The applicant had had several years to obtain supporting evidence and had been assisted by the Duty Lawyer Service in her applications. The Board did not accept there was any evidence that the applicant was suffering from any mental health problems of such severity that she would be unable to obtain appropriate mental health treatment in Sri Lanka. The Board was also satisfied that the applicant would be able to obtain counselling and support in her country if she required it. Country of origin information (“COI”) also showed that there were NGOs and counselling services available to assist the applicant. 48.Thus, the Board did not accept that any difficulties in obtaining mental health treatment in Sri Lanka were such that it met the threshold required to meet any of the grounds for non-refoulement protection in Hong Kong. 49.The Board discussed the general country situation and violence against women, as the applicant had claimed that she would be at risk of further violence in Sri Lanka as a single woman without support. The Board was of the view that it was unnecessary for it to consider internal relocation, as it had not accepted that the applicant was sought by the PC or the police. Although the Board accepted that violence against women remained common in Sri Lanka, and that the applicant was a victim of a sexual assault many years ago, the applicant had become a more mature woman who had lived and worked overseas for many years since the incident. The Board was not satisfied that there was any evidence that the sexual assault against the applicant was such that it would happen again or that the applicant would be pursued by the perpetrator. The Board was not satisfied that an attack several years ago established that there was a real chance, or strong grounds for believing that the applicant would be subjected to similar attack or sexual assault upon her return to Sri Lanka. The Board considered that the likelihood that any such attacks or assaults would occur to be remote. 50.In conclusion, the Board accepted only that the applicant was the victim of an unfortunate assault in Sri Lanka almost 20 years ago, and that the experience was traumatic for her and it would be difficult for her to return to Sri Lanka where she might have negative thoughts associated with her former experiences. However, the Board found that the assault was not at the hands of the police, and she had manufactured her claims to fear harm from the police and the PC. The Board also considered that the chance that the applicant would be subjected to a further similar attack was remote, and had also found that the applicant could obtain a NIC and undertake any treatment for her physical and mental health conditions and she would have the support of family members and friends upon her return. 51.Thus, having considered all the evidence, the Board was not satisfied that there was a real risk that the police or the PC would inflict harm amounting to torture, a risk to her life, or CIDTP[5] upon the applicant if she was returned to the country. The Board was not satisfied that there was a real risk that the applicant would be pursued or harmed as a single woman returning to Sri Lanka. Furthermore, while the Board accepted that the applicant would have some difficulties resettling in Sri Lanka after such a long period of time away, the Board was not satisfied that this reason, or any mental health problems or medical problems the applicant might have, would satisfy the high level of severity required to meet the grounds of Torture Risk, BOR 3 Risk and Persecution Risk for non-refoulement protection in Hong Kong. 52.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on the said three grounds under the USM. 53.The Board did not explicitly consider the availability of state protection or the viability of internal relocation for the applicant in the Board’s 2024 Decision. However, as the Board found that the applicant had failed to establish a real risk that she would be pursued by the PC or the police, or that she would be pursued or harmed as a single woman returning to Sri Lanka, it is not necessary for the Board to consider the availability of state protection. 54.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755). 55.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm upon her return to Sri Lanka, it is not necessary for the Board to consider internal relocation. 56.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 57.Having rigorously examined the Board’s 2024 Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s 2024 Decision. The Board’s 2024 Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 58.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 59.For reasons aforesaid, the Leave Application is dismissed. Dated the 14th day of October 2026
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
Form CALL-1 [1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [3] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. [4] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] Cruel, inhuman or degrading treatment or punishment. |
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