HETTITHANTRIGE, SASHINI THILINIKA PERERA v. TORTURE CLAIMS APPEAL BOARD

CACV 974/2025, [2026] HKCA 883

On appeal from [2025] HKCFI 5004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 974 OF 2025

(ON APPEAL FROM HCAL NO 1182 OF 2020)

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J U D G M E N T

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The Court:

INTRODUCTION

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Michael Wong (“the Judge”) dated 23 October 2025 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 2 June 2020 (“the Board’s Decision”) whereby the Board dismissed her appeal against the decision of the Director of Immigration (“the Director”) dated 30 August 2019 (“the Director’s Decision”).

BACKGROUND

2.  The applicant is a national of Sri Lanka.  She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she would be harmed or killed by her creditor Nitha Pernando as she had borrowed money to pay for her sister’s medical expenses but was unable to repay her debt.  The applicant’s non-refoulement claim was rejected by the Director, and her appeal against it was rejected by the Board. Details of the applicant’s claim and the Board’s reasons for rejecting the applicant’s appeal can be found in the Board’s Decision, the hyperlink to which can be found in the Form CALL-1 dated 23 October 2025 (“the Form CALL-1”).

3.  The applicant’s application for leave to apply for judicial review was refused by the Judge and details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1.

GROUNDS OF APPEAL

4.  By a notice of appeal filed on 5 November 2025, the applicant sought to appeal the Judge’s decision to this court on the grounds that (sic) :-

“1. That the learned Deputy Judge was wrong in arriving at the conclusion that the Appellant had no grounds for the intended Judicial Review.

2. As in this Court, the Appellant was not represented by a lawyer and was merely asked if the Appellant ha to say anything. There was a duty on the Judge to direct the attention of the Appellant to areas relevant for the Application for leave for Judicial Review. The Judge made no attempt to direct the unrepresented litigant to areas that were necessary in his mind to be addressed.

3. The Appellant states that the entire system of processing non-refoulement applications conducted in such a manner from the time the application for non-refoulement is made so as to make it as unintelligible to most applicants. This is true all the way up to the Application for Leave to Apply for Judicial Review. Whilst the Appellant is now aware of some of the technical aspects of these applications it is impossible for a person with limited education and a person who is prohibited from working and is therefore reliant on other for sustenance to be able to work out the intricacies of the Immigration System and the Judicial System. This leads them to believe that the factual elements are the most critical aspects of case whereas there are more legal aspects that have to be addressed. When therefore due to ignorance such aspects are not addressed the Courts tend to dismiss these applications without directing the litigant to address those issues.

4. The Tribunal did not properly assess the evidence of the Appellant and in not doing so failed in its judicial duty. The Appellant gave evidence and the evidence was rejected because the Tribunal refusal to believe it. There was no testing to see if the evidence was in fact true. If given the opportunity the Appellant is now prepared to show as a result of the arrests that have been made in Sri Lanka of various underground criminals the amount of support the gangs had from the then Ruling Party. It is only after the new Government came into power that these gangsters were arrested and brought before the Courts in Sri Lanka. Investigations are still continuing and it is likely to reveal how powerful these underworld entities were. When therefore an Appellant gives evidence that they were pursued by Underworld thugs and that it was impossible to live in Sri Lanka the Court merely rejects all that evidence without any further consideration. No attempts have been made by the 2^nd Respondent to verify the evidence. The current arrests in Sri Lanka (including that of an Inspector General of Police) and the ongoing investigations will shed more lights on this issue and therefore it would be preferable if this Appeal were to be heard sometime in late 2026 thus giving the Appellant an opportunity to raise the matters in proper manner and to show that the 1^st Respondent and the 2^nd Respondent had not assisted in the process of Justice which after all must be the basis of determining claims before the Torture Claims Tribunal. The Appellant states that this is a procedural error in the entire system and hence Judicial Review is appropriate.

5.  The appeal was scheduled to be heard on 25 March 2026.  The applicant has failed to lodge any skeleton argument in support of her appeal in accordance with the directions given by the Registrar of Civil Appeals on 25 February 2026, nor did she provide any explanation as to her request for the hearing to be re-scheduled to late 2026.  Accordingly, the applicant is deemed to have waived her right to have an oral hearing of the appeal, and elected to have the appeal disposed of on paper. The applicant was informed of the same by the court’s letter dated 11 March 2026.

DISCUSSION & DISPOSITION

6.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

7.  The assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The 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: Re Kartini [2019] HKCA 1022.

8.  In the present case, no error of law or procedural unfairness or irrationality in the decision of the Board was detected by the Judge or was pointed out by the applicant apart from the mere assertions as stated in her grounds of appeal, which were not substantiated with any specific information or elaboration as to how they apply to her present appeal.  They do not constitute any viable grounds of appeal either and lack substance.  We see no basis to interfere with the Judge’s decision. 

9.  For the above reasons, the applicant’s appeal is devoid of merits.  We dismiss it accordingly.