WICKRAMA KANKANANGE CHANDRAWATHIE alias WICKRAMASINGHE CHANDI NIRASHA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1571/2023

[2026] HKCFI 4412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1571 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  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 5 September 2023, 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 10 August 2023 (“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/2023/HCAL001571_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had not made out a case for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 11 January 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.  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 Decision, which can be viewed in the hyperlink above.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, she would be killed by a group of gangsters who invited her son to join them, but she objected. She claimed that her son was killed by the gangsters on 6 June 2008.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application, and her case was heard on 23 July 2026.

6.  The applicant confirmed that she would rely on the grounds stated in her supporting affirmation dated 5 September 2023 for her intended judicial review. When this court asked the applicant to elaborate on the said grounds, she merely replied that she has many health issues including high blood pressure, high cholesterol and arthritis, and she had medical appointments to follow up in Hong Kong. She added that she had nobody left in her home country, but her friend, who was working abroad, would go back to Sri Lanka after 6 months to look after her, and hence she requested for 6 more months to stay in Hong Kong.

Grounds for judicial review

7.  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).

8.  The applicant did not identify any ground for the intended judicial review in Form 86.

9.  In her supporting affirmation dated 5 September 2023, the applicant advanced 6 grounds for her intended judicial review under the heading “GROUNDS FOR JUDICIAL REVIEW”. The grounds are summarised as follows:-

(1)  The adjudicator did not consider her claim;

(2)  The adjudicator did not accept her documents as the documents were in her mother language;

(3)  The officer refused to give her time to translate the documents because he had no time;

(4)  The translator did not help her at all and became angry if the applicant did not understand;

(5)  The interpreter asked her not to take long time for interview as he had another job; and

(6)  She asked the court to help her and save her life.

10.  What the applicant said at the oral hearing before this court, namely that she has many health issues and requested to stay in Hong Kong for 6 more months, were not grounds for judicial review at all.

Discussion

11.  With regards to the matters that were stated as “GROUNDS FOR JUDICIAL REVIEW” in her supporting affirmation, all the grounds (except Ground (6) which is not a ground at all) were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.

12.  She did not state: (1) how the adjudicator did not consider her claim; (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

13.  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”.

14.  Thus, the general assertions that were contained in the applicant’s affirmation cannot help her at all.

15.  More importantly, these allegations cannot be true, as the applicant was legally represented all along, both in the first tier of screening before the Director and at the hearing before the Board. If she really had anything in her mother language to submit, she could have done so with proper translation through her legal representative. Similarly, if she had any difficulty with the interpreter, she could have reflected it to her legal representative as well.

16.  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).

17.  Thus, the applicant cannot ask this court to re-assess her non-refoulement claim. Nevertheless, 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.

18.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 24 April 2023. As said, the applicant was present and was legally represented. Thus, the applicant was given the opportunity to present her case to the Board through her legal representative.

19.  As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

20.  The Board had laid out its assessment of the applicant’s claims and evidence in paragraphs 21 to 34 of the Board’s Decision, and it is not necessary to repeat the same here. In sum, the Board found that the material aspects of the applicant’s case and the information/evidence given by her were inconsistent and not credible. The applicant’s asserted claim was founded on such unreliable information/evidence and the Board did not accept them as credible.

21.  Moreover, the Board found that even if the information as set out in the applicant’s Non-refoulement Claim Form (“NCF”) were accepted, the Board would still dismiss the applicant’s appeal/petition for the reasons given in paragraphs 36 to 56 of the Board’s Decision.

22.  The Board found that the applicant had previously withdrawn her claim for protection on 6 August 2018 stating that her problem in her home country Sri Lanka had been solved and she no longer faced any danger there. As such, the risks she raised under Answer 35 in the NCF (up to around 21 August 2008) no longer existed. The applicant admitted to the Board that she returned to Sri Lanka and stayed there safely for about 1.5 years before she re-entered Hong Kong with another identity on 26 August 2020. This showed that no gangster was trying to locate her and she was not facing any risks from any gangster.

23.  The Board also found the applicant’s answer that she gave in the screening interview about the reason why she did not lodge a non-refoulement claim as soon as she came to Hong Kong, namely that she did not know about it, to be untrue. As aforesaid, the applicant had withdrawn her non-refoulement claim made earlier and her long delay in applying for the claim indicated that she was not a genuine non-refoulement protection seeker. The Board had no hesitation to hold that she was not facing the risk as alleged by her upon her return to Sri Lanka, and so her feared ill-treatment would not materialize.

24.  Furthermore, the Board found that the applicant’s alleged problem with the gangsters (if any) was a private dispute that had nothing to do with the Sri Lankan government or for any Convention reasons.

25.  Thus, the Board found that the applicant had not made out a case for non-refoulement protection on any of the applicable grounds under the USM.

26.  Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found that the applicant’s feared ill-treatment would not materialize.

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 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.

29.  The finding of facts, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. 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 error 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 Leave Application is dismissed.

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