SUPPIAH KUNENDRAKUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 155/2022

[2026] HKCFI 1782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 155 of 2022

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only;  or
	consideration of the documents and the Applicant being absent in open court;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Introduction

1.  By Form 86 filed on 21 February 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 7 February 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 10 January 2019 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant did not attend the oral hearing. I have considered the merits of the Leave Application based on the materials available before me.[2]

Discussion

4.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[3] In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. Apart from making a bare assertion that he was unable to submit his supporting document in time and would try to submit the same at the oral hearing, the Applicant has failed to identify any valid or effective public law grounds.[4] I note that he was legally represented and was assisted by a lawyer instructed by the DLS in providing details of his non-refoulement claim, in response to questions from the Director of Immigration. In any event, he did not turn up at the hearing before me and no further supporting documents have been provided.

5.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

6.  I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[5]

7.  First, the primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of the Immigration).[6]

8.  The Board was acutely aware of the Applicant’ claim that if refouled, he would be at risk of the proscribed harm in Sri Lanka at the hands of two business creditors i.e. Murgeshan and Ranjith as he failed to repay the business debts owed to them. He also claimed that he would be at additional risk of harm i.e. wrongful conviction by the police based on a false report filed by Ranjith that he had deliberately damaged a Buddhist temple in Sri Lanka.

9.  The Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials. The Board found his case concerning the indebtedness to Murgeshan and Ranjith and their consequential ill-treatment of him plausible, but rejected his case regarding the false report. The Board was therefore entitled to find and conclude that (1) past ill-treatment by the Applicant’s enemies (i.e. Murgeshan and Ranjith) back in 2005 is insufficient to meet the minimum level of severity such that he will face a future risk of being subjected to ill-treatment of such a severity; (2) the state authorities in Sri Lanka had no knowledge of his ill-treatment by his enemies because he never reported it to them; (3) adequate state protection is available; and (4) there are reasonably available options for internal relocation in Sri Lanka.

10.  Second, there is simply nothing to indicate the Board had failed to take into account any relevant matters. The Board was quite simply entitled to come to the conclusions it did.

11.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

Conclusion

12.  Accordingly, I dismiss the Leave Application.

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