RUHUNU GAMAGE ROSHAN MADUSHANKA PERERA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 849/2023

[2026] HKCFI 3653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 849 OF 2023

Application for leave to apply for judicial review

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

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

1.  On this court’s own motion, the name of the 1^st putative respondent be amended to “Torture Claims Appeal Board”, “Torture Claims Appeal Board / Non-Refoulement Claims Petition Office” be deleted as the 1^st putative interested party, and “Director of Immigration” be changed to be the sole putative interested party.

2.  The applicant’s application for leave to apply for judicial review in respect of the Director of Immigration’s decision dated 29 July 2022 be dismissed.

3.  The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 23 May 2023 be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 1 June 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  “Determination of Appeal/Petition With a Hearing issued by Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 23 May 2023 (22 pages in total)”; and

(2)  “Notice of Decision issued by the Director of Immigration dated 29 July 2022 (37 pages in total)”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 23 May 2023 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 July 2022 (“the Director’s Decision”). It is clear that the first decision referred to by the applicant was the Board’s Decision and the second decision was the Director’s Decision.

3.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000849_2023_files/the_Board's_Decision.pdf

4.  The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“USM”). Hence, the Board affirmed the Director’s Decision, which rejected his non-refoulement claim.

Amendments

5.  In Form 86, the applicant named the Board / “Non-Refoulement Claims Petition Office” as both the 1^st putative respondent and the 1^st putative interested party.

6.  In fact, only the Board should be named as the 1^st putative respondent and it is not necessary to name the Board as a putative interested party. Only the Director should be named as the putative interested party.

7.  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 party at all.

8.  Thus, on this court’s own motion, the name of the 1^st putative respondent is amended to “Torture Claims Appeal Board”, “Torture Claims Appeal Board / Non-Refoulement Claims Petition Office” is deleted as the 1^st putative interested party, and “Director of Immigration” be changed to be the sole putative interested party.

The intended judicial review in respect of the Director’s Decision

9.  As held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review.

10.  Thus, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is dismissed. This court will further consider the Leave Application in respect of the Board’s Decision only.

The applicant’s case

11.  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.

12.  In sum, the applicant claimed for non-refoulement protection because he feared that if refouled to Sri Lanka, he would be killed by his wife’s family and militant Buddhist monks, as he had converted from Buddhism to Christianity.

Oral hearing

13.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 18 June 2026.

14.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

15.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

16.  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).

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

18.  In his affirmation dated 1 June 2023, the applicant mentioned several matters against the Board’s Decision, which are summarised as follows:-

(1)  His problems remained in Sri Lanka till this day and it was not safe for him to return;

(2)  The determination made by the Board was nothing but biased observations that were designed to reject his claim. The basis of rejection lacked completeness and evidence;

(3)  His case had been determined unfairly;

(4)  It was procedurally unfair as he needed to prepare his appeal against the Director’s Decision without any legal assistance or language assistance;

(5)  The Board erred in its decision by not considering any COI[1] that were on his religious grounds. The Board had accepted that he was associated with Christianity, which was perceived to be Militant Buddhist. The adjudicator should at least consider Militant Buddhists in Sri Lanka. However, the adjudicator had merely disposed of his case primarily on credibility grounds which were not supported by any COIs and were merely his observations that were not properly justified;

(6)  Neither the Director nor the Board had taken his unique situation into account fairly and sequentially;

(7)  The applicant should be allowed to attend a hearing especially his credibility was an issue;

(8)  Decision-makers should adopt a reasonable approach to assessing credibility and should give a person who is generally credible but unable to substantiate all his claims the benefit of the doubt;

(9)  The adjudicator attacked him on the timing of raising his non-refoulement claim, without taking the vulnerability and difficulties of a non-refoulement claimant into account;

(10)  The adjudicator had exercised his case management power wrongfully; and

(11)  The applicant reserved the right to submit further evidence either orally or in writing after the Board’s Decision had been read to him in his first language via a qualified interpreter.

19.  As aforesaid, the applicant was absent at the oral hearing before this court and therefore no further elaboration was made on the allegations as summarised above. Nevertheless, as the applicant is relying on the grounds stated in his affirmation to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

20.  First of all, some of the grounds that were asserted in the applicant’s affirmation were directed at both the Director and the Board. As mentioned above, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, supra). Hence, this court will consider those grounds as directed at the Board in respect of the Board’s Decision only.

21.  In Ground (1), the applicant just stated that his problems remained in Sri Lanka and it was not safe for him to return. However, his problems in his country and the risks arising from those problems had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

22.  Many of the grounds were simply general allegations without particulars. The applicant’s complaints in Grounds (2), (3), (6) and (10) were all advanced without any specificity. He did not mention what “biased observations” the Board had made, or how or why the Board’s rejection of his claims lacked completeness and evidence or was unfair. He did not specify what “unique situations” of his had the Board failed to take into account, or how the Board had exercised its case management power wrongfully.

23.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

24.  Thus, Grounds (2), (3), (6) and (10) are not valid grounds to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

25.  The applicant complained about the lack of legal and language assistance in the preparation of his appeal and judicial review in Ground (4).

26.  With regards to the allegation that there was a lack of legal assistance, a lawyer from the Duty Lawyer Service did assist the applicant in the first tier of the screening process when his case was assessed by the Director. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Hence, there is no substance in this allegation.

27.  Likewise, it is trite that the high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658). The applicant’s allegations that he did not know how his case was determined and hence it was not easy for him to appeal against the decision and that no one read the determination of the appeal/petition to him in his own language simply cannot help him.

28.  Moreover, it is noted that all the documents filed by the applicant in relation to the Leave Application were written in English. It indicates clearly that the applicant is either familiar with the English language or he has access to such language assistance if needed. The applicant cannot claim that he has been prejudiced at all.

29.  In Ground (7), the applicant put forward that he should be allowed to attend a hearing especially his credibility was an issue. It seems that he was complaining that he was not afforded an opportunity to present his case to the Board at a hearing. However, it is simply not true that there was no oral hearing before the Board. The Board held an oral hearing on 2 May 2023 to assess the applicant’s appeal/petition and the applicant appeared in person. He was indeed given the chance to present his case and whatever evidence he wanted to submit to the Board in person.

30.  In Ground (8), the applicant asserted that the Board should afford him the benefit of the doubt when assessing his credibility. This court notes that despite its finding that the applicant’s evidence in relation to his marriage and the harm he claimed to fear was vague and unconvincing, the Board found that even if his claims were accepted, his claim for non-refoulement protection would still fail. Thus, Grounds (8) is not arguable at all.

31.  In Ground (9), the applicant criticized the Board’s finding that his delay in making his non-refoulement claim was inconsistent with that of a person in genuine fear of risk of harm, and the Board’s attack on him in relation to the timing of raising his non-refoulement claim. However, it is clear from the Board’s Decision that the Board made no comment on the timing of the applicant’s making of his non-refoulement claim at all. This accusation was plainly irrelevant and unfounded.

32.  The applicant asserted in Ground (11) that he reserved his rights to submit further evidence. However, no other evidence was submitted by the applicant since he made the Leave Application in June 2023. He was in fact absent at the oral hearing before this court and thus failed to provide any other evidence or elaborate on any of his grounds for judicial review.

33.  As to Ground (5), which appeared to be more specific to the applicant’s own case, the applicant asserted that the Board erred in its decision by not considering any COI that were on his religious grounds. The Board accepted that he was associated with Christianity, which was perceived to be Militant Buddhist. The adjudicator should at least consider Militant Buddhists in Sri Lanka. However, the adjudicator had merely disposed of his case primarily on credibility grounds which were not supported by any COIs and were merely his observations that were not properly justified.

34.  As can be seen from the Board’s Decision, Christian was not perceived as militant Buddhist. On the contrary, it was the applicant’s assertion at the Board’s hearing that he, as a Christian, feared militant Buddhists. He even claimed that his wife’s family and militant Buddhist monks tried to burn down his family’s home the day after he fled, and had continued to harass members of his family since then.

35.  There was also no basis for the applicant to accuse the Board for not having considered COI relevant to his claim and/or relevant to militant Buddhists. This courts notes that the Board had laid out extensive, fully-referenced COI concerning religious disputes in Sri Lanka in paragraphs 14 and 15 of the Board’s Decision, and had discussed with the applicant that COI indicated that while there had been an increase in militant Buddhist actions against minority religions in Sri Lanka, it was mainly targeted at Muslims rather than Christians. While the applicant did not comment on the Board’s such observation, the information he himself produced with his application also related to attacks upon Muslims, not Christians (see paragraph 22 of the Board’s Decision).

36.  Thus, the applicant’s complaint in Ground (5) that the Board failed to consider any COI that were on his religious grounds was simply untrue.

37.  This court therefore finds that none of the matters raised by the applicant in his affirmation dated 1 June 2023 constitutes any valid ground in challenging the Board’s Decision.

38.  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).

39.  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.

40.  As said, in assessing the appeal/petition by the applicant, the Board held an oral hearing on 2 May 2023 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.

41.  The Board had laid out its findings on the credibility of the applicant’s case in paragraphs 26 to 29 of the Board’s Decision, and its finding of facts in relation to his claims in paragraphs 30 to 34 of the Board’s Decision. It is not necessary to repeat the same here.

42.  In gist, the Board found the applicant’s evidence about his marriage and the harm he claimed to fear to be vague and unconvincing. For the sake of the Board’s Decision, the Board accepted the applicant’s claim that he had converted to Christianity. Given the vagueness of the applicant’s evidence about his claimed marriage, the very short duration of that marriage and his evidence that his wife had applied for a divorce, the Board found that he had failed to establish any threats that might have been made against him in 2018 when he was last in contact with her, or that there was an ongoing risk to his safety or even his life if he were to return to his country now.

43.  More importantly, the Board found that even if the applicant’s claims about his marriage were to be accepted, it was clear from COI that violence against Christians by militant Buddhists in Sri Lanka was rare. The Board also noted that notwithstanding the applicant’s vague claims about the links between Buddhists and “underworld gangs”, there was no information before the Board that would establish the existence of such a link.

44.  Thus, the Board found that the applicant had not established that there were substantial grounds which supported the conclusion that he would face a real risk of ill-treatment or death at the hands of militant Buddhists as claimed if he returned to Sri Lanka.

45.  The Board did not consider availability of state protection to the applicant. However, as the Board found that the applicant was not at a real risk of being tortured, ill-treated, arbitrarily deprived of his life or persecution, it is not necessary for the Board to consider the availability of state protection.

46.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

47.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

48.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

49.  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.

50.  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

51.  For reasons aforesaid, the Leave Application in respect of both the Director’s Decision and the Board’s Decision is dismissed.

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