LIYANA ARACHCHIGE NAVEEN ROSHAN GUNATHILAKA v. TORTURE CLAIMS APPEAL BOARD

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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 8 July 2020, 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 30 October 2019 (“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/2020/HCAL001423_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant failed on credibility and there was no factual basis on which to establish any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Further or alternatively, even taking the applicant’s account to its highest, the Board found no real risk that the applicant would be subjected to serious harm on his return to Sri Lanka.  Moreover, the Board found that state protection would be available and internal relocation was viable to the applicant.  

3.  Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 22 March 2019 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

4.  In Form 86, the applicant named “TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE” as the putative respondent, when only the Board should be named as the putative respondent.

5.  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. 

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

Late application

7.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

8.  However, the applicant filed Form 86 on 8 July 2020, which was more than 8 months after the Board’s Decision (made on 30 October 2019).  The applicant was hence late for more than 5 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

9.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)   the length of the delay;

(ii)   the reason for the delay;

(iii)   the merits of the intended application; and

(iv)   any prejudice to the putative respondent and to public administration.

10.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.  At the oral hearing before this court on 26 March 2026, the applicant told this court that he could not remember the reason for his late filing of the Leave Application.

11.  A delay of more than 5 months is substantial, and there is no reason for this court to extend the time for the applicant to file the Leave Application when he could not provide any explanation for the delay at all.  More importantly, there is no merit of the intended judicial review as discussed below.

12.  Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made.  The Leave Application can be dismissed on the ground of being made out of time alone.

13.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

14.  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.

15.  In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, he would be harmed or even killed by (1) the telephone shop owner in Pettah, Chaminda and their related persons, including Inspector Ekanayake; and (2) the Sri Lankan police in general.

Oral hearing

16.  The applicant requested for an oral hearing and his case was heard on 26 March 2026.  

17.  When this court asked the applicant to confirm if he would rely on the grounds that were contained in a document with the title “GROUNDS FOR JUDICIAL REVIEW” that was annexed to his supporting affirmation dated 8 July 2020, the applicant replied that he would rely on the grounds but he could not remember them. 

18.  After the grounds were explained to him, he then said that the Board asked him to move to another place in Sri Lanka, but Sri Lanka is very small.  He also said that he had given all the documents regarding his problems to the Board, he had lived in Hong Kong for 21 years and if he could go home, he would do so, as his parents were ageing and his wife was in Sri Lanka alone.  However, his parents were happy that he was staying in Hong Kong safely.  The applicant further said that he had medical issues and if he could solve them, he would go back to Sri Lanka.

Grounds for judicial review

19.  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).

20.  The applicant did not advance any grounds for his intended judicial review in Form 86.

21.  In the said document that was annexed to his supporting affirmation, the applicant mentioned a few grounds.  The relevant paragraphs are reproduced as follows, and numbered by this court for ease of discussion:-

(1)   ‘I have categorically mentioned that the first claim made at the beginning was with no legal representation and therefore not to take this into account and to disregard but to consider only the second account.  Despite my repeat appeals the Board has accounted and decided that it has damaged my credibility which is unlawful’.

(2)   ‘It is unreasonable for the board to decide that the two accounts I have submitted in my claim as “one of them, if not for both had to be false (refer to paragraph 118 on the page 25 of the decision) with no proof for the determination.’

(3)   ‘The Board had undermined my credibility and decided on the point that “I did not claim protection before my arrest in Hong Kong.  I have explained the reason in my claim forms and despite the Board has rejected my claim which is not as per the laid down procedure.’

(4)   ‘I refer to the paragraph 149 in the page 30 which says, to allege that the Police or the other alleged intimidators would seek to cause him harm, “let alone serious harm, for minor incidents and small time criminal activities that happened over 15 years ago is unreal”.  This is totally unreasonable and unlawful to decide with no evidence to prove it is unreal.’

(5)   ‘The Board has rejected to accept my request to consider BOR5 in my claim which is very unfair.  hence, I suggest that I should be given another chance to be screened under BOR 5 which is my right.’

22.  As aforesaid, the applicant did not elaborate on any of the above grounds at the oral hearing before this court, but mentioned that he had some medical issues and he would return when he could solve those issues.  He also challenged the Board’s finding that he could relocate within his country.

Discussion

23.  First of all, the applicant’s assertion at the oral hearing about having some medical issues was not presented to the Board for assessment.  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.

24.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 

25.  Thus, the applicant cannot rely on matters not raised before the Board as a ground for his intended judicial review, such as his medical issues.  This court will not take on the role of the primary decision-makers and re-assess his non-refoulement claim.

26.  The applicant’s case, including his alleged danger and whether he could relocate internally, had been duly assessed by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

27.  As aforementioned, the applicant did not elaborate on any of the aforesaid grounds.  Without the applicant’s explanation or elaboration, this court can only rely on what were stated therein to understand and examine the grounds for his intended judicial review.

28.  Ground (1) of the applicant’s grounds for judicial review was that, despite the applicant’s request to disregard his initial account, ie his first claim made at the beginning without legal representation, the Board had taken it into account and decided that it had damaged the applicant’s credibility, which was unlawful.

29.  This court notes that the Board had made a ruling in respect of this challenge, which was annexed to the Board’s Decision as Appendix 1.  Relying on the case of FB[1], the applicant objected to the use of the “pre-FB documents”.  The Board ruled that the case of FB did not affect the admissibility of the so-called “pre-FB documents”, only their weight.  The Board decided that it could and would admit them as part of the evidence.  This court agrees with the Board’s ruling.

30.  Moreover, the Board had stated clearly in paragraph 23 of the Board’s Decision that “The Appellant seeks to suppress the Original Account.  He has clearly abandoned it.  I shall thus assess his claim based on his Current Account alone, but his Original Account remains relevant.”

31.  Thus, the applicant’s claim for non-refoulement was assessed based on his Current Account alone.  Clearly, his Original Account was not used for the purpose of assessment of his non-refoulement claim but as a reference only.

32.  This court agrees with the Board that the applicant could not ask the Board to disregard the Original Account completely, as it was still evidence of what the applicant had previously said even though he had no legal representation at that stage.  Thus, Ground (1) is not arguable.

33.  In Ground (2), the applicant asserted that it was unreasonable for the Board to decide that one of the two accounts he submitted, if not both, had to be false.  This court finds nothing wrong or unreasonable for the Board to have that conclusion when the two accounts, as found by the Board, were downright incompatible.

34.  In fact, the Board had carefully analysed the applicant’s current claims, including all the documentary evidence submitted, in paragraphs 70 to 113 of the Board’s Decision.  The reference to the applicant’s first claim in paragraph 118 was just to indicate that the contradictions between the two accounts were numerous and hence the two accounts were not merely inconsistent but downright incompatible.  With such a finding, it is just logical to conclude that one of the two accounts, if not both, was false.

35.  In Ground (3), the applicant asserted that the Board had undermined his credibility and decided on the point that he did not claim protection before his arrest in Hong Kong, despite that he had explained the reason in his claim forms.

36.  In this regard, this court finds no fault on the part of the Board to exercise its right to refer to the provisions in section 37ZD of the Ordinance and paragraph 17.1 of the Petition Guide, which provided that in considering a torture/non-refoulement claim, the Board may take into account certain behaviours of a claimant as damaging his credibility, and that a failure to make the claim before being arrested or detained is one of such behaviours.  Whether the applicant’s explanation for such delay should be accepted or not is within the exclusive fact-finding power of the Board.

37.  In any event, the Board had expressly stated that such behaviour, ie the failure to make the claim before being arrested, was “relevant but not determinative” (see paragraph 117 of the Board’s Decision).  Thus, the Board was entitled to consider the applicant’s delay in making his claim before his arrest as an undermining factor to his credibility.

38.  In Ground (4), the applicant seeks to challenge the Board’s finding as to his risks from the police and the other alleged intimidators.  The applicant referred to paragraph 149 of the Board’s Decision, which says, “To allege that the police or the other alleged intimidators would seek to cause him harm, let alone serious harm, for minor incidents and small-time criminal activities that happened over 15 years ago is unreal”.  The applicant contended that such a finding was totally unreasonable and unlawful.

39.  This contention is totally unfounded.  In fact, despite its findings on the credibility of the applicant’s accounts, the Board had gone on to assess the applicant’s case based on his Current Account and assuming that the applicant’s Current Account was accepted.  The Board had laid out its analysis of the applicant’s Current Account, and had given full and detailed reasoning in paragraphs 144 to 148 for its conclusion at paragraph 149.  It is this court’s view that the Board’s conclusion in this regard was fully justified.  There was nothing unreasonable or unlawful for the Board to have that conclusion at all.

40.  As to Ground (5), namely that the Board was unfair to have rejected to accept his request to consider BOR 5 in his claim, the Board had given full reasons for so doing in paragraphs 7 to 11 of the Board’s Decision.  In gist, the Board considered that BOR 5[2] was not an applicable ground for non-refoulement protection in Hong Kong, as BOR 5 did not contain an absolute and non-derogable right.  The Board also relied on the decision of the Court of Final Appeal in Comilang[3] that in order to be excepted from section 11 of the Hong Kong Bill of Rights Ordinance, the right must be both absolute and non-derogable.  This court finds nothing wrong in the Board’s decision in this regard.

41.  Thus, it is this court’s finding that the applicant has failed to advance any valid ground, whether by his written submission annexed to his supporting affirmation, or by his oral evidence at the hearing before this court.

42.  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, supra).

43.  Thus, despite the fact that the applicant did not advance any valid 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.

44.  In assessing the appeal/petition by the applicant, the Board held two oral hearings on 4 and 12 September 2019 respectively.  The applicant was represented by Miss Helen Au, duty lawyer assigned by the Duty Lawyer Service.  Thus, the applicant was given the chance to present his case to the Board through his legal representative.  Nevertheless, the applicant decided not to testify at the Board’s hearing after the Board had given its ruling on the applicant’s objection to the use of the “pre-FB documents”.

45.  As can be seen from the Board’s Decision, the Board had carefully analyzed and considered the applicant’s claims and all the evidence.  As aforesaid, the applicant’s current claimed risks as presented in his current claim, namely the risks from the telephone shop owner in Pettah, Chaminda and their related persons, including Inspector Ekanayake, and the Sri Lankan police in general, had been fully considered by the Board.  Nevertheless, even taking the applicant’s Current Account to its highest, the Board did not accept that a real risk of serious harm on the applicant’s return to his country was proven.

46.  Moreover, as can be seen from paragraphs 151 to 177 of the Board’s Decision, the Board had considered the availability of state protection to the applicant in length, taking into account the country of origin information (“COI”) submitted by both the Director and counsel for the applicant and the applicant’s individual circumstances.  Looking at the evidence as a whole and applying them to the particular facts and circumstances of the applicant, the Board found that there was systemic sufficiency of state protection in Sri Lanka and there was nothing particular in the applicant’s circumstances that the Sri Lankan government would be unwilling to afford him the requisite protection.

47.  The Board also found that, notwithstanding its conclusion that the applicant had failed to substantiate a case on all the applicable grounds under the USM, internal relocation was clearly a viable option to the applicant.  The Board had given its reasons in paragraph 213 of the Board’s Decision as to why it concluded that it would not be unduly harsh or unsafe for the applicant to relocate to other parts of Sri Lanka.  Thus, the applicant’s claim for non-refoulement protection also failed due to the viability of internal relocation.

48.  Hence, the Board concluded that the applicant had not made out a case for non-refoulement on any of the available grounds under the USM.

49.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

50.  For the sake of completeness, this court finds that even if the Board’s ruling on the applicant’s objection to the use of the “pre-FB documents” was faulted, the Board’s findings on the availability of state protection and the viability of internal relocation for the applicant are not flawed.

51.  As held by the Court of Appeal in TK v Michael C Jenkins, Esq (21/11/2012, CACV286/2011), the court was right to uphold the Board’s decision in rejecting the applicant’s claim when internal relocation was safe and reasonable.  The burden of proof on the question of internal relocation lies with the applicant.  

52.  As aforesaid, the Board had given full reasons in paragraph 213 of the Board’s Decision as to why it concluded that it would not be unduly harsh or unsafe for the applicant to relocate to other parts of Sri Lanka.  The Board had duly considered and addressed the applicant’s risks from his alleged intimidators, his fear of the Sri Lankan police and the outstanding warrants against him in its determination on the viability of internal relocation for the applicant.

53.  Thus, there is no basis for this court to interfere with the Board’s Decision after subjecting it to rigorous examination and anxious scrutiny.  The Board had made a finding that it would not be unduly harsh for the applicant to relocate internally to avoid the risks he allegedly faced.  The applicant did not produce any concrete evidence to support his assertion that the Board’s conclusion on internal relocation was flawed.

54.  Even if the Board’s ruling on the applicant’s objection to the use of the “pre-FB documents” was faulted, the Board’s Decision on internal relocation was still sound.  The Board’s Decision that the applicant was not entitled to non-refoulement protection because of the viability of internal relocation and the availability of state protection to the applicant cannot be flawed.

55.  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. 

56.  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

57.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

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