MADDUMAGE NUWAN RAWEENDRA v. TORTURE CLAIMS APPEAL BOARD

HCAL 769/2023

[2026] HKCFI 4375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 769 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.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 9 May 2023”.

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 19 May 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-

“The Petition team (Security Bureau) gave unfare dicission to my appeal at 09-mAy-2023”

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 9 May 2023 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 7 July 2021 (“the Director’s Decision”). At the oral hearing before this court on 23 July 2026, the applicant confirmed that the Board’s Decision was the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000769_2023_files/the_Board's_Decision.pdf

3.  The Board rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same, which rejected his non-refoulement claim.

Amendments

4.  In Form 86, the applicant named “The Petition team (security Bureau) test my appeal gave the dicission at 09-mAy-2023” as the putative respondent, and “TORTURE CLAIMS APPEAL BOARD NON-REFOULEMENT CLAIMS PETITION OFFICE”  as the putative interested party.

5.  As only the Board’s Decision is the subject matter of the Leave Application, the Board should be named as the putative respondent and the Director should be named as the putative interested party.

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, the name of the putative interested party is amended to “Director of Immigration” and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 9 May 2023”.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, he would be harmed or killed by Janaka Sampath (“Janaka”), the brother of the applicant’s girlfriend named Anne Madhuwanthi (“Anne”), as Janaka objected to their interfaith relationship and was angry that the applicant was the reason Anne left her home in Sri Lanka seeking employment in Hong Kong.

Oral hearing

9.  The applicant requested for an oral hearing and his case was heard on 23 July 2026.

10.  When this court asked the applicant for his grounds of the intended judicial review, he said that he received death threats in Sri Lanka and that was why he submitted the Leave Application to seek justice.

11.  As the applicant indicated in his supporting affirmation dated 19 May 2023 that he had given all his documentary proof to the Board but the documents were disregarded, this court asked the applicant what documents had the Board disregarded in its consideration of his claim. The applicant replied that the Board had not considered his threats that were contained in a police report, and he had also submitted some other documents to the Board, but he could not remember what other documents the Board had failed to consider.

12.  The applicant added that his parents called him and told him that some people went to their home in Sri Lanka in 2024 and 2025 and threatened to kill him, his parents were really scared and if he went back to Sri Lanka, his life would be in danger.

13.  The applicant submitted an extract from the information book of the Horana Police Station in Sri Lanka with its certified English translation to this court to show that the Board did not consider this document when assessing his claim.

Grounds for judicial review

14.  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).

15.  In Form 86, the applicant mentioned that he was not satisfied with the Board’s Decision because his enemies were still waiting to make harm for his life.

16.  In his supporting affirmation dated 19 May 2023, the applicant stated that he was not satisfied with the decision because he gave all his documentary proof to the Board but all were disregarded, and he still had problem in his country.

17.  As aforesaid, at the oral hearing, the applicant submitted an extract from the information book of the Horana Police Station with its certified English translation, and said that the Board did not consider this document when assessing his claim. He added that some people went to his parents’ home in Sri Lanka in 2024 and 2025 and threatened to kill him, his parents were scared and his life would be in danger.

Discussion

18.  First of all, the applicant’s danger in his home country had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

19.  The document that the applicant submitted to this court at the hearing was an extract from the information book of Horana Police Station which was issued on 22 March 2023, and was a Statement of the Complainant made on 4 January 2021 at 5:50. The complainant who made the said statement was the applicant’s father.

20.  In the said statement, the applicant’s father mentioned that three persons entered his house on 4 January 2021 at about 5:45 and one of them was Janaka, the brother of Anne who was having a love affair with the applicant. The three persons asked for the whereabouts of the applicant and Janaka’s younger sister. The complainant’s wife told them that they were not at home and were abroad. Getting furious over hearing that, Janaka pushed the complainant who fell down. The three persons threatened the complainant and his wife that if the applicant set foot on Sri Lankan soil again, he would be killed, as the applicant had taken Janaka’s younger sister out of the country.

21.  The incident referred to in the said statement should be “the first occasion” referred to in paragraph 39(i) of the Board’s Decision, when Janaka and his men went to his parents’ home and vandalized his parents’ home in January 2021.

22.  However, as mentioned in the same paragraph of the Board’s Decision, the applicant had confirmed that his father reported the first occasion to the Horana police station but the police did not register his complaint even though it was authorised by the Grama Niadari village. The applicant told the interviewing officer at the screening interview on 11 June 2021 that he could produce the complaint report of his father, but that had not been done up to the time the Board made its decision.

23.  In fact, as mentioned in paragraph 39(ii) of the Board’s Decision, the applicant only produced to the Board a copy of the information report to the Horana Police Station on 22 May 2022 regarding Janaka’s second visit in May 2022.

24.  Nevertheless, the Board accepted that Janaka visited his parents’ home with a number of men and damaged the furniture and household items and it was also possible that he did threaten that he would harm the applicant and his parents at the time of the visits in January 2021 and May 2022.

25.  It is also clear from the Board’s Decision that the Board’s assessment of the applicant’s case was based on the acceptance of such factual information provided by the applicant. Thus, although the applicant did not or could not produce the said document to the Board to prove the existence of Janaka’s first visit, the Board assessed his case on the assumption that the first visit did happen.

26.  Accordingly, the document produced by the applicant to this court would not be able to advance the applicant’s case any further, even if this document was or could be produced to the Board for assessment at the material time.

27.  In any event, it is not the case that the Board failed to consider the said document, as the applicant did not submit it to the Board. Hence, the applicant’s assertion that the Board disregarded his document cannot stand.

28.  What he further said at the oral hearing before this court, namely that some people came to his parents’ home in Sri Lanka in 2024 and 2025 and threatened to kill him, were apparently not known to the Board. The incidents, if they actually happened, occurred after the Board’s Decision, which was made on 9 May 2023.

29.  The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

30.  Thus, the applicant cannot rely on matters not raised before the Board as his grounds for judicial review. This court will not take on the role of the primary decision-makers and re-assess his non-refoulement claim.

31.  In the circumstances, what the applicant stated in his Form 86 and his supporting affirmation, as well as what he told this court at the oral hearing, cannot amount to any valid ground to challenge the Board’s Decision.

32.  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).

33.  Thus, the applicant cannot ask this court to reconsider this non-refoulement claims. However, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid, despite the fact that the applicant did not advance any valid ground for the intended judicial review.

34.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 28 April 2023. The applicant was present and was given the chance to present his case to the Board in person.

35.  As can be seen from the Board’s Decision, the Board had carefully analyzed and considered the applicant’s claims and all the evidence. The Board laid out in paragraphs 39 to 40 of the Board’s Decision its findings of the applicant’s claimed past events, his future risk and why the Board was not persuaded that there was a real risk that the applicant would be subjected to serious harm or death at the hands of Janaka, if he was refouled to Sri Lanka.

36.  In gist, the Board found that the applicant only received two calls from Janaka arising from his relationship with Anne, with the first call in 2016 without any threats made by Janaka, and the second call in January 2021 when Janaka found out that Anne had left Sri Lanka and threatened to kill the applicant. The applicant met Anne many times during his home leave and was not located or hurt by Janaka. Even if Janaka did visit the applicant’s parents’ home and threatened to kill the applicant in January 2021 and May 2022 as claimed, none of his family members was harmed and the threats were empty threats.

37.  Moreover, based on the applicant’s evidence that he and Anne intended to be married soon, the Board found it unlikely that Janaka would kill the applicant in revenge for their relationship when their union was legalised. After all, Anne was no longer the young girl of 16 years old in 2016 when Janaka discovered their relationship.

38.  The Board also found from country of origin information (“COI”) that the risk of ill-treatment or torture for interfaith marriages in Sri Lanka was low.

39.  Moreover, the Board found that state protection was available in Sri Lanka, and the Board had given its full reasons in paragraphs 54 to 55 of the Board’s Decision for a finding that the applicant could relocate to one of the big cities in Sri Lanka where he could find gainful employment.

40.  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.

41.  The finding of facts, 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. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

42.  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.

43.  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

44.  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