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HCAL 3416/2019
[2025] HKCFI 4212
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3416 OF 2019
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Warnakulasuriya Roshan Vijitha |
Applicant |
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and
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Torture Claims Appeal Board
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Putative Respondent |
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and
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Director of Immigration
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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”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 6 November 2019”.
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 18 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the following:-
(1) “TCBA DECISION NOVEMBER 6, 2019”;
(2) “ANSWER AND QUESTION ON FEBRUARY 28, 2012”;
(3) “APPEALANT’S CLOSING SUBMISSION TO THE DIRECTOR OF IMMIGRATION SEPTEMBER 23, 2019”; and
(4) “NON REFOULMENT ON AUGUST 25, 2017”.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 6 November 2019 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 August 2017 (“the Director’s Decision”).
3. The applicant confirmed at the oral hearing before this court on 10 July 2025 that the Board’s Decision is the only decision in respect of which relief is sought in the Leave Application. Thus, the Leave Application is concerning the Board’s Decision only.
4. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003416_2019_files/the_Board's_Decision.pdf
5. For numerous and independent reasons and even on the applicant’s alleged facts, the Board found that the applicant failed to establish a case of non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision.
Amendments
6. In Form 86, the applicant named the Director and the Board as the proposed respondents and spelt the Board’s name wrong. However, as confirmed by the applicant at the oral hearing, only the Board’s Decision should be considered in the Leave Application. Thus, the putative respondent should just be the Board.
7. Further, the applicant did not name any putative interested party, when the Director should be so named.
8. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.
9. As aforesaid, the decision in respect of which relief is sought in the Leave Application should just be the Board’s Decision. Thus, on this court’s own motion, it is so amended.
The applicant’s case
10. 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.
11. In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, he feared being harmed or killed by supporters of the United People’s Freedom Alliance (“UPFA”) previously called People’s Alliance (“PA”) (PA and UPFA are referred to as “UPFA” collectively hereinafter) as he was a member of the opposition party the United National Party (“UNP”).
Oral hearing
12. The applicant requested for an oral hearing of the Leave Application. His case was heard on 10 July 2025.
13. At the hearing, the applicant first confirmed that the Leave Application is only in respect of the Board’s Decision.
14. When asked for his grounds for the intended judicial review, the applicant initially said that he could not recall anything, but he confirmed that he had stated in Form 86 that his life would be in danger in his country. This court then stood down the case for the applicant to refresh his memory by reading the Board’s Decision with the help of the court interpreter.
15. After reading the Board’s Decision, the applicant said that there were two factual matters wrongly interpreted at the Board’s hearing. The first matter was that he came to Hong Kong on 25 October 2003, but the interpreter interpreted that he came to Hong Kong in 2013. The second matter was that the first incident happened to him in Sri Lanka was at the end of April 2003, but the interpreter interpreted it as happened in the first week of that month.
16. Apart from that, the applicant had nothing further to say.
Grounds for judicial review
17. 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).
18. In Form 86, the applicant stated that his life was still in danger in his country.
19. In his supporting affirmation dated 18 November 2019, the applicant merely submitted the documents that he sought to judicially review. As mentioned, he confirmed at the oral hearing that the Board’s Decision was the only subject matter of the Leave Application.
20. At the oral hearing before this court, the applicant only mentioned that the interpreter had wrongly interpreted two factual matters to the Board as aforesaid.
Discussion
21. First of all, as seen in paragraph 1 of the Board’s Decision, the Board noted that the applicant departed Sri Lanka on 25 October 2003 and came to Hong Kong on 26 October 2003. There was nothing before the Board to suggest that the applicant came to Hong Kong in 2013 as he alleged at the hearing before this court. Thus, there could not be any wrong interpretation as the applicant alleged. In any event, the date of his entry to Hong Kong was not significant in his non-refoulement claim.
22. As to the date of the first incident that happened to him in Sri Lanka, this court notes that the Board specifically mentioned in paragraph 3.1 of the Board’s Decision that in the NCF[1], which was given in 2012, the applicant stated that the incident occurred “one day in the first week of April 2003”. The applicant changed the date to “the last week of April” when asked by Government Counsel at the Board’s hearing. When asked why there was this discrepancy, the applicant said that his memory at the time of the hearing (in June 2019) was better than in 2012 (when the NCF was given). Thus, the applicant was clearly aware of the discrepancy at the Board’s hearing but he did not mention that the discrepancy was caused by wrong interpretation at all.
23. The Board explicitly stated in paragraph 5.1 of the Board’s Decision that the discrepancy regarding the date when the first incident happened per se was not fatal. However, the Board found it defied common sense when the applicant claimed that his memory was better in mid-2019 than in mid-2012, which showed that the applicant was fabricating the event.
24. Thus, the alleged wrong interpretation of the two factual matters raised by the applicant before this court has no merits at all.
25. 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).
26. Thus, 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.
27. In assessing the appeal by the applicant, the Board held an oral hearing on 12 June 2019. The applicant was present and represented by a duty lawyer. There was also another duty lawyer making the final submissions on his behalf. Thus, the applicant did have a chance to present his case through the duty lawyers to the Board.
28. As can be seen from the Board’s Decision, the Board gave detailed reasons for refusing to accept the applicant’s asserted reasons for leaving Sri Lanka and for concluding that he was an unreliable witness and his story was unreliable.
29. The Board found that there was a complete lack of supporting evidence to the barely asserted first incident, where the applicant claimed that 10 UPFA members attacked him. There was no collateral support to the applicant’s assertion that he was truly a member of UNP, which was a crucial issue as the applicant based his whole case on the fact that he was a UNP member. The Board also found that the applicant had embellished his alleged injury from the first incident by giving a self-diagnosis of “fracture of the left arm” without proper medical evidence or a report.
30. Furthermore, the Board found that the second incident advanced by the applicant was merely a hearsay, or a double hearsay, as the applicant’s assertion was only that his father told him that the UPFA men had told his father that they would kill him because he had tried to complain to the police. The Board found the story self-contradictory and eroded into the applicant’s credibility because on the one hand, the applicant said that the police “sided” with Rajapakse of UPFA, while on the other hand, the UPFA people were fearful that the applicant had complained to the police.
31. The Board also found the applicant’s assertion at the oral hearing that there was “a state of anarchy” in Sri Lanka, “no parliament, no government, no law no order, no security”, clearly false, and such fabrication and embellishment again eroded into the applicant’s credibility.
32. Significantly, the Board found the facts that the applicant’s serious delay in making the non-refoulement claim for almost 5 years after he came to Hong Kong and that he only lodged such a claim two days after his arrest cast doubt on his allegedly dire fear for his life.
33. Despite the above findings, the Board nevertheless assessed the applicant’s risk on all the applicable grounds under the USM. The Board found that there was no official or passive acquiescence of the state in the threat the applicant feared, and that the alleged sufferings fell far short of the “severe pain and mental sufferings” required to qualify for being a torture. The Board concluded that the applicant did not face a real risk of torture, cruel, inhuman or degrading treatment or punishment, or arbitrary deprivation of life if he were to return to Sri Lanka.
34. As to the viability of internal relocation, the Board did not accept that the 10 unidentified men who allegedly attacked the applicant 16 years ago were interested in locating the applicant all over Sri Lanka, even if they had huge resources and manpower to do so. There were many places in Sri Lanka, other than the applicant’s home locality, where the applicant, as an able-bodied young man with good education and work experience, could safely live without undue hardship.
35. The Board also found from country of origin information (“COI”) that there was reasonable availability of state protection for the applicant.
36. The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situation had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
37. 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.
38. 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 intended judicial review has no realistic prospects of success at all, and hence leave must be refused.
Conclusion
39. For reasons aforesaid, the Leave Application is dismissed.
Dated the 16thday of September 2025
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( Irene 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:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 16 September 2025
Applicant’s ref. no:
Nil
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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:
16 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 8421/17/9/93/S176
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 230/09 Pt.3
(Formerly RBCZ 1785/08) T7S74
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] NCF refers to Non-refoulement Claim Form
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