FERNANDO MINHINDUKULASURIYA LALITHA RAMANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 42/2025, [2025] HKCA 671

On Appeal from [2025] HKCFI 444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 42 OF 2025

(ON APPEAL FROM HCAL NO 2310 OF 2019)

________________________

________________________

_________________

J U D G M E N T

_________________

Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Levy (“Judge”) on 24 January 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 7 August 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 8 January 2019 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Sri Lanka born in 1969. She last entered Hong Kong to work as a domestic helper on 29 December 2010 and was permitted to stay until 29 December 2012 or two weeks after termination of employment contract, whichever was earlier. Her contract of employment was prematurely terminated on 18 June 2011. The applicant later applied for an extension of stay permitting her to remain until 24 July 2011, but she overstayed since 25 July 2011. On 20 June 2018, the applicant surrendered to the Immigration Department and submitted written significations dated 26 August 2018, 28 August 2018 and 6 September 2018 indicating her intention to lodge a non-refoulement claim. The applicant’s claim was made on the basis that if she returned to Sri Lanka, a creditor (Michael) would harm or kill her due to an outstanding loan borrowed by her late husband for his fish trading business. The factual background of the applicant’s claim was set out at [17] to [23] of the Board’s decision.

3.  By notice of decision dated 8 January 2019, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her. Those grounds were BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision. Oral hearings were held on 4, 6 and 25 June 2019, during which the applicant gave evidence and answered questions from the Board. At the oral hearings, the applicant could not describe the operation, profit, or failure of the fish trading business. She also could not reconcile the different versions of past events previously given in writing and at the oral hearings, nor could she reconcile the inconsistencies of the documents she provided. The Board did not find the applicant’s account to be credible, due to, inter alia, her account of the fish trading business and its little profits covering repayment of the loan being implausible, her claim about the original loan and the threats she received being vague and inconsistent, her claims about having made a report to the police and not having done so being inconsistent, and the authenticity of the documents she produced being suspicious.

5.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to Sri Lanka. It found there was in fact no real risk of harm if the applicant returned to Sri Lanka, because the risk of harm did not reach the minimum level of severity, it was a private dispute with no state involvement, state protection would be reasonably available to her, and internal relocation to Colombo or Polonnaruwa would be viable and not an unduly harsh option.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Sri Lanka. By its written decision dated 7 August 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 12 August 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. She stated that her case had been rejected, that she was not satisfied, and that her life was still in danger in her country in the Form 86. In the accompanying affirmation, she simply repeated the basis of her claim for non-refoulement protection and annexed the Board’s decision.

8.  The Judge considered the application on the basis of the documents and the applicant’s submissions made at the oral hearing held on 12 December 2024. On 24 January 2025, the Judge issued her decision, refusing to grant leave to apply for judicial review. The reasons were set out in [9] to [14] of the Form CALL-1 as follows:

“ 9. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

10. The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she deposed that she was not satisfied with the decision and exhibited a copy of the Board’s Decision. In her written submissions dated 9 April 2021, the applicant submitted that the Board acted in a procedurally unfair manner; and that she was not given sufficient time for her to prepare the hearing before the Board. At the hearing, this court had asked her to elaborate on these submissions. However, all the applicant stated was that as her husband had died, she could not go back to her country now as no one would help her. Since the applicant was acting in person, this court asked her what mistake or error she believed the Board had made. She stated that the husband’s creditor would torture her if she were refouled. Despite the court’s probing, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. There were no evidence or identification of errors in support of the intended challenge.

11. The applicant also submitted written submissions dated 9 April 2021, alleging a breach of procedural fairness and requesting for an oral hearing. However, no particulars were provided in support of her bare assertions.

12. The Board’s Decision was arrived after examining the applicant’s evidence in detail. It found that the applicant’s account was not credible and in any event, even taken at its highest, there was no real risk that the applicant, if refouled, would be subjected to serious harm. Furthermore, the applicant has an option of internal relocation alternatives. These are findings of fact, which the court in a judicial review will not interfere with.

13. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant’s evidence was not credible and that the applicant failed to discharge her burden of proving the asserted fears and risks.

14. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

Appeal to this Court

9.  On 4 February 2025, the applicant filed her Notice of Appeal against the Judge’s decision. Her stated grounds of appeal were that the Board and the Director did not scrutinise her claim properly and that she would be killed by her enemies if she returned to her home country.

10.  The applicant has lodged written submissions in which she stated that the Judge failed to properly analyse her claim and failed to find the decisions of the Board and the Director to be irrational, procedurally unfair and unreasonable, but without any particulars relating to her case. She further stated that the Board failed to give reasons to justify its decisions, failed to give her sufficient opportunity to produce further evidence, wrongly relied on unofficial sources of information or hearsay, failed to find a consistent pattern of gross and mass violation of human rights in her country, and wrongly found that state protection existed in her home country. The applicant also repeated the basis of her claim for non-refoulement protection.

11.  At the oral hearing, the applicant said that she could not go back to her country. She needed more time in Hong Kong as her daughter had married someone from Sweden and would sponsor her to go to Sweden, so that she sought to stay in Hong Kong until she received the sponsorship.

Discussion

12.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in an application for judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s claim was not credible, the risk of harm did not reach the minimum level of severity, the dispute was of a private nature without state involvement, reasonable state protection would be available to her, and internal relocation to Colombo or Polonnaruwa would be a viable option. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision. The fact that the applicant seeks to stay in Hong Kong pending the outcome of a possible move to Sweden is not relevant to whether the Judge’s decision was erroneous.

15.  The applicant’s appeal is accordingly dismissed.