HERATHGE SAMINDA BANDULA GUNAWARDENA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 683/2020

[2025] HKCFI 3068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 683 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court

1.   Form 86 be amended on the court’s own motion as follows:-

(i)    the Torture Claims Appeal Board/Non-refoulement Claims Petition Office be named as the Putative Respondent; and

(ii)   the Director of Immigration be named as the Putative Interested Party.

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 17 April 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non refoulement Claims Petition Office (the “Board”) dated 22 January 2020 (the “Board’s Decision”) in which the Board affirmed a decision of the Director of Immigration (“Director”) dated 28 September 2018 (the “DOI Decision”) which rejected the Applicant’s claims for non-refoulement on all applicable grounds.

2.  In the Form 86, the Applicant has named both the adjudicator and the Board as proposed respondents and both the Director and the Secretary for Justice as proposed interested parties.  As per usual practice that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

Background

3.  The Applicant is a national of Sri Lanka.  He was born in 1975 and received secondary education.  He had engaged in various occupations including as office helper, wheeler driver and worker on in a tea plantation.  He claimed that he was facing threats from his enemies due to his support and membership of the United People Freedom Alliance (“UPFA”), a political party.  His detailed personal background, the relevant facts and relevant procedural history have been sufficiently set out in the Board’s Decision, which can be accessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.  In a judicial review, this court does not act as a further avenue of appeal.  Though in non-refoulement cases, an enhanced standard in scrutinising the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers.  This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board (Nupur Mst v Director of Immigration [2018] HKCA 524, §14(1)).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

5.  In his Form 86 and the affirmation filed in support of the Form 86, the Applicant gave his account of the history of his case and expressed his disagreement with a number of aspects of the Board’s Decision.  His main complaints are as follows:-

(i)    He complained against the Board’s finding (Board’s Decision at §48) that the Applicant’s return to Sri Lanka in 2005 and 2013 after his successful departure for Hong Kong and Russia was inconsistent with his alleged genuine fear of being harmed and killed in Sri Lanka.

(ii)   He also complained about the Board’s agreement with the Director that his failure to promptly to seek protection after he was outside Sri Lanka affected his credibility (Board’s Decision at §48).

(iii)  He complained that, in finding that state protection and internal relocation alternatives were available to the Applicant (Board’s Decision at §51), the Board failed to take into account Country of Origin (“COI”) materials submitted by him to the Board.

(iv)  He also claimed that he was forced by the Immigration Department to sign a letter confirming that it was safe for him to return to his home country when he returned to Sir Lanka on 1 December 2012.

(v)   Finally, the Applicant claimed that he remained exposed to risk of harm due to his status as a member of a political party.

6.  The Applicant attended an oral hearing before me on 14 July 2025.  At the hearing, the Applicant also confirmed that he did not have anything else to add to his application.

7.  Looking at the Board’s Decision, the Board has analysed each of the applicable grounds under the Unified Screening Mechanism, identifying in each instance the correct legal principles  (§§13‑26), and considered the evidence from the Applicant and arguments put forward on behalf of him (§§59-120).  The Board came to the conclusion that none was made out:-

(i)    Although the Board was prepared to accept the veracity of the Appellant’s factual account (§157), the Board was not persuaded that there was sufficient evidence of a real risk of serious harm to the plaintiff if he returns to Sri Lanka (§§158-172).

(ii)   Further, the Board concluded that state protection and internal relocation was available to the Applicant in any event (§§173-179).

8.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision, despite rigorous examination and anxious scrutiny. I do not find the Applicant’s proposed grounds of review to be meritorious:-

(i)    The Applicant’s complaint about §§48-51 of the Board’s Decision is misplaced as those paragraphs were only a summary of the DOI Decision. It is clear from the Board’s Decision that the Board reaches its own conclusion after performing its independent analysis.

(ii)   There is no evidence to support the Applicant’s serious allegation that he was forced by the Immigration Department to sign a letter to cancel his non-refoulement claim in 2012. In any event, this is irrelevant for present purposes as it is clear that he was able to make another claim after he returned to Hong Kong in November 2013.

(iii)  Most importantly, I cannot see any basis to disturb the Board’s finding that the Applicant did not face any real risk of serious harm in Sri Lanka after a meticulous analysis of the evidence: (a) his involvement in the UPFA was only at a junior level (§158); (b) there was no evidence that the previous incident sexual assault perpetrated on his daughter (which in any event took place over a decade ago) was connected to the Applicant’s political activities; (c) even in 2004 when the Applicant received numerous death threats and was personally confronted by his political opponents, no actual serious harm was caused too him or his family (§163); (d) any risk of harm was at best localised (§§165-166); (e) the risk of any terrorist attack was speculative given that the attacks were mainly targeted at Christians and Westerners whilst the Applicant was a Buddhist (§168); and (f) the risk of serious harm to the Applicant arising from his status as a failed asylum seeker if he returns to Sri Lanka was remote given that the Applicant was able to remain safely in Sri Lanka after his return in December 2012 despite having his earlier torture claim in Hong Kong being unsuccessful.

(iv)  The Applicant’s complaint of “cherry picking” of COI information is unfounded. The Board was plainly entitled to consider all the COI information presented to it and make its own finding as to the availability of reasonable state protection and internal relocation alternatives.  The Board in fact accepted that there were serious short comings in the Sri Lankan justice and law enforcement system and that it was not satisfied that effective state protection would be available (§§173-175).

(v)   In finding that the reasonable internal relocation alternatives were available, the Board was plainly entitled to focus on the personal circumstances of the Applicant (§177), particularly, taking into account that: (a) the lack of evidence to support the Applicant’s speculation that his enemies would have the capacity and inclination to pursue him throughout Sri Lanka; and (b) the fact that the Applicant is an able-bodied adult with a reasonable education level.

Conclusion

9.  For the above reasons, leave is accordingly refused.

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

[1]  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000683_2020_files/the_Board's_Decision.pdf