DARNAGAMA ARACHCHIGE SANGEETH PRASANNA DASSANAYAKA v. TORTURE CLAIMS APPEAL BOARD

HCAL 229/2024

[2026] HKCFI 1555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 229 OF 2024

  Application for Leave to Apply for Judicial Review

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

Following:

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

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Sri Lanka who entered Hong Kong illegally on 17 January 2020 and subsequently surrendered to the Immigration Department on 23 January 2020 when he raised a non-refoulement claim for protection on the basis that if he returned to Sri Lanka he would be harmed or killed by certain local gangsters over his brother’s debts.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Colombo, Sri Lanka.  After leaving school he worked in various jobs including as a kitchen helper, a cook and a salesman in his home district to make his living.

3.  In June 2019 he was informed that his brother had been murdered by some unknown men for reason unknown to the police, and several days after his brother’s funeral the Applicant started to receive threatening phone calls from men claimed to be gangsters demanding him to repay his brother’s debts or else they would chop off his limbs. 

4.  As a result the Applicant became fearful for his life and fled to Kottawa to hide in a friend’s place, and on 15 January 2020 he departed Sri Lanka for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 June 2020 and attended screening interview before the Immigration Department with legal representation.             

5.  By a Notice of Decision dated 20 October 2020 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local gangsters upon his return to Sri Lanka as low due to the low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of those gangsters to seriously harm or kill him other than to press him for money, that in any event it was a private monetary dispute between his brother and those gangsters only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 64,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for those local gangsters to locate him.

7.  On 5 November 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 12 July 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 18 January 2024 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from any local gangsters over any debts of his brother that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Sri Lanka were true that there was no reliable evidence of any real intention of those local gangsters to seriously harm or kill him, and that in any event it was a private monetary dispute between his brother and those local gangsters only without any official involvement that state or police protection would be available to the Applicant upon his return to Sri Lanka as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by those local gangsters that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 26 January 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and puts forward various grounds for his intended challenge which can be summarized as follows:

(1)   That the Adjudicator’s decision is unfair, unjust and inequitable in terms of legal proceedings and the way the proceedings were administered in the assessment of the Applicant’s claim;

(2)   That the Adjudicator failed to properly understand the Applicant’s claim and unfairly dismissed his claim on credibility;

(3)   That the Adjudicator wrongly assessed that the Applicant can safely relocate to areas of his country where his enemies could easily locate him.           

10.  These are however all just some bare and vague assertions of the Applicant without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator wrongly assess the options of internal relocation in his case.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  Moreover, the Applicant recently on 2 January 2026 filed an affirmation requesting to withdraw his application as he has now got his Hong Kong visa but without providing any further details or documentary evidence.

15.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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