Kmm v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL1082/2021 [2025] HKCFI 3958 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1082 of 2021
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge To dated 25 July 2025: Leave to apply for Judicial Review be granted. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 29 July 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 18 June 2021 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 December 2017 (the “Notice”), refusing his application for non-refoulement protection. Background 2.The Applicant is a Sri Lankan national, now aged 40. He came from a wealthy and influential family in Batticaloa, Sri Lanka. At the material time, Sri Lanka was in civil war with a military group known as the Liberation Tigers of Tamil Elam (“LTTE”). Later, a defector group broke away from the LTTE and formed the Tamil Makkal Viduthalai Pulikal (“TMVP”). The Applicant’s father used to support LTTE by monetary donations and providing equipment during the civil war. The Applicant was in friendly terms with the leader of the TMVP and supported the TMVP. Later, the TMVP formed alliance with the Sri Lanka government to fight against the LTTE. 3.In around October to November 2004, the Applicant was kidnapped by the LTTE and tortured for the purpose of extracting information about the leader of the TMVP. His father and sister were kidnapped and tortured by the TMVP working together with the Sri Lanka government in order to track down the Applicant. The Applicant fled Sri Lanka and came to Hong Kong in March 2005. 4.In 2012, the Applicant’s father fled to Australia and was accorded refugee status. His sister fled in January 2015 and ended up in Switzerland in October 2015. She was granted non-refoulement protection in August 2017. The non-refoulement proceedings 5.The Applicant raised a torture claim on 1 September 2005, which was rejected by the Director and subsequently by the Board on appeal. However, the decision of the Board was quashed by the High Court on 12 December 2014 upon a judicial review. His claim was remitted to the Board for determination by a differently constituted Board. The Board fairly adjourned the appeal to enable the Applicant’s claim under BOR 2 Risk, BOR 3 Risk and Persecution Risk grounds which have become available under the Unified Screening Mechanism to be assessed. By the Notice, the Director also rejected his claims under these three grounds. His appeal against the Notice was dismissed by the Board. The Applicant now seeks leave to apply for judicial review of that Decision. 6.In gist, the Applicant claims he is at risk of harm from three separate sources, the LTTE, the TMVP and the Sri Lankan government. He advanced four grounds of review:
Overall scrutiny 7.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the above grounds are reasonably arguable and some of them, at least, have reasonable prospect of success. Hence, the Court granted him leave to apply for judicial review. Conclusion 8.For the above reasons, the Applicant’s leave application is allowed. Dated the 29th day of August 2025
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
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