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HCAL 1182/2020
[2025] HKCFI 5004
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1182 OF 2020
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BETWEEN
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Hettithantrige, Sashini Thilinika Perera |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the applicant be amended to “Hettithantrige, Sashini Thilinika Perera”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 2 June 2020”.
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 15 June 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the “DECISION OF PETER JOHN POWER ESQR. DATED 2 JUNE 2020”.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 2 June 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 30 August 2019 (“the Director’s Decision”). Mr Peter John Power was the Board’s member who determined the applicant’s appeal/petition. Thus, the Leave Application was made in respect of 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/HCAL001182_2020_files/the_Board's_Decision.pdf
3. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition and confirmed the Director’s Decision, which refused the applicant’s application for non-refoulement protection.
Amendments
4. In Form 86, the applicant spelt her own name wrong. Further, she named “PETER JOHN POWER ESQR. TORTURE CLAIM APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE” as the putative respondent, and both the Director and the Department of Justice as the putative interested parties.
5. In fact, only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.
6. 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.
7. As mentioned, Mr Peter John Power determined the applicant’s appeal/petition in his capacity as a member of the Board. Hence, the decision in respect of which relief is sought should be the Board’s Decision.
8. Thus, on this court’s own motion, the name of the applicant is amended to “Hettithantrige, Sashini Thilinika Perera”, the name of the putative respondent is amended to “Torture Claims Appeal Board”, the name of the putative interested party is amended to “Director of Immigration”, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 2 June 2020”.
The applicant’s case
9. 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.
10. In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, she would be harmed or killed by her creditor Nitha Pernando (“Nitha”), as she had borrowed money from Nitha to pay for the medical expenses of her sister Palanawaduge, Nishani Saman (“Nishani”), who was diagnosed with schizophrenia, but the applicant was unable to repay the debt.
Oral hearing
11. The applicant requested for an oral hearing of the Leave Application and her case was heard on 28 August 2025.
12. However, when this court asked the applicant to elaborate on the grounds that were asserted in the document attached to her affirmation dated 15 June 2020, she merely said that she had obtained a loan from a person and it was not safe for her to return to Sri Lanka. She added that she could not go back and live in another place in Sri Lanka as the creditor’s husband had contacts everywhere in Sri Lanka.
Grounds for judicial review
13. 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).
14. The applicant did not advance any ground for the intended judicial review in Form 86, but she asserted several grounds in a document attached to her supporting affirmation dated 15 June 2020. The grounds contained therein are summarised as follows:
(1) Her fear of return is real. Her enemy Nitha is a moneylender and her husband is an underworld gangster who has the means of killing her if she returns.
(2) There is no state protection for her if she goes back. The police will be reluctant to take action against Nitha as her husband is a powerful figure in the area and has close connections with powerful politicians. If she makes any complaints against Nitha, her husband will harm or even kill her.
(3) Internal relocation is not possible for her as Nitha can find her wherever she lives with the strong connection her husband has with the current government.
(4) The adjudicator found that her difficulties with Nitha was a private monetary dispute and she was not eligible to claim protection on the basis of Torture under section 37U(1). However, she faces a real and personal risk of being arbitrarily deprived of her life under BOR 2 and also ill-treatment under BOR 3. The statement by the adjudicator is unreasonable.
(5) It is unlawful for the adjudicator to conclude that internal relocation is an option for her to avoid threat and danger. The international law does not recognise relocation is an option to avoid persecution.
(6) The current political and security situation in Sri Lanka has deteriorated with the election of new president a few months ago. She does not want to go back to her country where the security is in jeopardy and her life is in danger.
15. As aforesaid, the applicant did not elaborate these grounds further at the oral hearing.
Discussion
16. The applicant asserted in ground (1) as summarized above that her fear from Nitha was real and Nitha’s husband was a gangster. She also asserted in ground (4) that she faced a real BOR 2 Risk[1] and BOR 3 Risk[2].
17. However, her feared threat from Nitha and the extended threat from Nitha’s husband had been thoroughly assessed by the Board. It was the Board’s finding after due consideration of the law and all the evidence that she did not face a real risk of any of the proscribed harm namely Torture Risk[3], BOR 2 Risk, BOR 3 Risk and Persecution Risk[4] under the USM. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
18. In grounds (2), (3) and (5), the applicant sought to challenge the Board’s findings on state protection and internal relocation.
19. These grounds are simply irrelevant. The Board did not make such findings. The Board considered that given its findings that the applicant’s claims regarding the loans were not at all credible or plausible and therefore the applicant was not at risk of harm were she to return to Sri Lanka, there was no need to consider the availability of reasonable state protection or the reasonable possibility of internal relocation.
20. The applicant asserted in paragraph (6) of the grounds that the current political and security situation in Sri Lanka had deteriorated and she did not want to return to her country where security was in jeopardy.
21. The applicant did not raise the general security issue in Sri Lanka to the Board for its consideration. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, 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.
22. 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.
23. Thus, the applicant cannot rely on matters that were not raised before the Board for its consideration and assessment to challenge the Board’s Decision.
24. It is therefore this court’s finding that the applicant has failed to establish any valid ground for challenging the Board’s Decision.
25. 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).
26. 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.
27. In assessing the appeal by the applicant, the Board arranged an oral hearing on 12 December 2019 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.
28. The Board considered the claims and evidence of the applicant with care. However, the Board found that neither her claims nor her evidence about those claims were plausible or credible for many reasons, details of which could be found in paragraph 49 of the Board’s Decision.
29. Moreover, the Board found, even on the applicant’s evidence, that she and her family members were never physically harmed by Nitha or her associates. The threats from Nitha were not carried out over the very long period suggested by the applicant. The applicant did not come close to establishing, even to the low standard required, that she would be at risk of any harm should she return to Sri Lanka.
30. Thus, the applicant’s alleged danger upon return to her home country had been duly considered but rejected by the Board.
31. Although the Board did not consider state protection and internal relocation, it was unnecessary to do so as the applicant’s claims and the matters giving rise to her non-refoulement claim were rejected in their entirety.
32. 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 she 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 her home area (see Gardi v SSHD [2002] 1 WLR 2755).
33. 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.
34. The finding of facts, the assessment of evidence and risk of harm were primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
35. 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.
36. 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
37. For reasons aforesaid, the Leave Application is dismissed.
Dated the 23rd day of October 2025
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( Irene LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors on:
23 October 2025
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 23 October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16298/19/9/54/S378
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 515/19
(Formerly RBCZ 10366/19) [T2S53]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[4] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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