|
HCAL 1162/2026
[2026] HKCFI 4532
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1162 OF 2026
BETWEEN
| |
Hewa Fonsekage Neroshane Preyadarshane Fonseka |
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 (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 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 24 June 2026, 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 8 April 2026 (“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/2026/HCAL001162_2026_files/the_Board's_Decision.pdf
2. The Board found that the applicant was unable to make out her claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 2 February 2026 and confirmed the same, which rejected her non-refoulement claim.
Amendment
3. The applicant named “Torture Claims Appeal Board/Non-refoulement Claims Petition Office” as the putative respondent in Form 86, when only the Board should be so named.
4. 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 respondent at all.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, she feared she would be harmed, ill-treated or killed by her husband, as he was angry that she had repeatedly refused to remit money to him and wanted to divorce him. The applicant claimed that she lived in fear of her husband because he had physically abused and verbally threatened her in the past.
Disposal on paper
8. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
9. 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).
10. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit/affirmation dated 24 June 2026.
Discussion
11. 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).
12. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
13. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 25 March 2026. The applicant was present at the hearing and was thus given the opportunity to present her case to the Board in person.
14. The Board had laid out its consideration and material findings of facts on the applicant’s claim in paragraphs 38 to 43 of the Board’s Decision, and it is not necessary to repeat the same here.
15. In gist, the Board accepted the basic facts spoken by the applicant that her husband had physically abused and verbally threatened her in the past, and that the applicant subjectively feared further harm (or worse) from him should she be refouled to Sri Lanka.
16. However, the Board found no, or no reliable evidence to show (and the Board did not accept) that:-
(1) Her husband would seriously harm or kill her if she were to return to Sri Lanka;
(2) The applicant faced risk across Sri Lanka;
(3) The applicant suffered injuries to the required severity; and
(4) The state of Sri Lanka was unwilling to help the applicant for a RC[1] reason.
17. Further, the Board found that the applicant’s husband was a non-state actor. There was no involvement of any public official or any person acting in an official capacity. The issue of state acquiescence or failure of due diligence did not arise in the circumstances of the applicant’s case. She was not targeted in the past on account of any Convention reasons but on account of domestic matters.
18. As to state protection, the applicant accepted that the police had helped her in the past and, on the latest occasion, had even asked her to produce documents to them for investigation. However, she herself subsequently withdrew her complaint against her husband. The Board found nothing to suggest that the police would not have helped her to resolve her domestic problems with her husband at the time. Indeed, the fact that the police took down her details on all occasions suggested that they were taking action. It seemed to the Board that the applicant was the one who did not take the latest complaint further. Moreover, the applicant could resort to higher authorities and/organisations to seek help.
19. Thus, the Board concluded that state protection appeared to be available to the applicant.
20. Given its findings as summarised above, it was not strictly necessary for the Board to consider the viability of internal relocation for the applicant. Nevertheless, the Board still did it as a matter of caution and laid out in paragraphs 85 to 92 of the Board’s Decision its reasons in finding that there was no reason why the applicant could not relocate to other parts of Sri Lanka and stay there without undue hardship and restart her life. The Board was not persuaded that her husband would follow her around Sri Lanka to locate and harm or kill her.
21. Thus, the Board concluded that the applicant had not made out a case for non-refoulement on any of the available grounds under the USM.
22. The finding of facts, including the assessment of evidence, country of origin information 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.
23. 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.
24. 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
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 12th day of August 2026
| |
( Gladys LEE )
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 his 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/Handed to the applicant/the applicant’s solicitors
on: 12/08/2026
Applicant’s ref. no:
Nil |
|
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: 12/08/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 28119
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 20/26 (formerly RBCZ 5002420/25)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol
|