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HCAL 767/2024
[2026] HKCFI 2711
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 767 OF 2024
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BETWEEN
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Ratnagoda Baranaduge Chamila Roshani Sevuwandi |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.
2. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.
3. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 14 May 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 28 February 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000767_2024_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 10 December 2021 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.
3. The applicant had previously made a CAT claim[1] in 2006 and her CAT claim was refused by the Director on 6 August 2007. Her petition against the Director’s said decision was refused by the Secretary for Security on 15 July 2008. The applicant did not report her recognizance as required since 15 August 2008. She submitted to the Director a Non-refoulement Claim Form dated 13 August 2021, after 13 years of absence.
4. Despite that her CAT claim was previously disposed of, the applicant’s claims for non-refoulement protection were assessed in respect of all the applicable grounds under the USM. As aforesaid, the applicant’s claims for non-refoulement protection failed on all the applicable grounds under the USM.
Amendment
5. In Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondents, when only the Board should be the putative respondent.
6. 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.
7. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.
The applicant’s case
8. The applicant claimed for non-refoulement protection because if refouled to Sri Lanka, she would be harmed or killed by her boyfriend or his brothers.
Withdrawal of the Leave Application
9. By her affirmation dated 31 March 2026, the applicant applied to withdraw the Leave Application as she sought to return to Sri Lanka. However, she did not state that her problem in her country had been resolved or that she would be safe to return.
10. There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.
11. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-
“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”
12. Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the merits of the Leave Application.
Grounds for judicial review
13. 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).
14. The applicant did not advance any grounds for the intended judicial review in her Form 86, nor in her supporting affirmation dated 14 May 2024. She merely stated in the affirmation that the Board’s Decision was not made correctly, and that she intended to submit additional grounds in support of her claim.
Discussion
15. First of all, the applicant’s assertion in her affirmation dated 14 May 2024 that the Board’s Decision was not made correctly was advanced without any particulars.
16. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, such a general allegation that the Board’s Decision was not made correctly cannot help the applicant at all.
17. The applicant did not submit any additional grounds after she filed the Leave Application.
18. 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).
19. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
20. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 5 December 2023. The applicant was present and was represented by Dr Nisha Mohamed, Duty Lawyer assigned by the Duty Lawyer Service. Thus, the applicant was given the opportunity to present her case to the Board through her legal representative.
21. The Board had laid out in detail its findings as to the credibility of the applicant in paragraph 110 of the Board’s Decision, and it is not necessary for this court to repeat the same here.
22. As can be seen from the Board’s Decision, the Board found numerous material inconsistencies and material omissions in the applicant’s accounts given in her CAT claim and her non-refoulement claim, as well as in her written and oral evidence. Those inconsistencies and material omissions, together with the unconvincing explanations by the applicant, cast doubt on the overall credibility of the applicant.
23. The Board found that the conduct of the applicant was inconsistent with her alleged fear of returning to Sri Lanka. The Board found what the applicant presented to the Director as evidence and what she told the Board at the hearing was not credible and could not be relied upon. The Board concluded that the applicant was not a witness of truth. The Board was of the view that the applicant’s claims concerning her boyfriend had been fabricated. The Board was not persuaded that any threats of harm or harm took place in Sri Lanka before the applicant came to Hong Kong in April 1999.
24. Apart from accepting as true that the applicant was of Sri Lankan nationality, the Board rejected the applicant’s account in its entirety and found that the applicant had not established any of the facts asserted.
25. Thus, the Board rejected the applicant’s appeal/petition and her claim for non-refoulement protection on all the applicable grounds under the USM.
26. The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims were rejected completely, it was not necessary for the Board to consider the availability of state protection.
27. 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).
28. As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider internal relocation.
29. The finding of facts, including the assessment of evidence and risk of harm, was primarily within the realm of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
30. Having rigorously examined the Board’s 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 Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
31. 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
32. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 13th day of May 2026
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( Gladys LEE )
for Registrar, High Court
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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 his solicitors must:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors on: 13/05/2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 13/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 19484
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1210/21 (Formerly RBCZ 11222/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Claims for non-refoulement protection under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”) used to be handled by the Immigration Department under an administrative screening mechanism prior to the implementation of the statutory scheme under Part VIIC of the Immigration Ordinance.
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