Mallawa Arachchige Amitha Priyanganie Mallawa Arachchi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 64/2022

[2025] HKCFI 4001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.64 of 2022

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K. W. Lung:

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observation for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 15 October 2021 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 15 January 2022. Her application was filed on 17 January 2022, which is late for 2 days only. This issue will be dealt with below.

2.The applicant requested a hearing. She appeared before the Court on 4 August 2025.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Sri Lanka. She came to Hong Kong as a visitor on 28 June 2005. She overstayed and was arrested by police on 18 October 2005. She lodged a non-refoulement claim with the Immigration Department on 15 November 2005 on the basis that, if refouled, she will be harmed or killed by her husband because she refused to join his political party, Joint Party of the Janatha Vimukthi Peramuna and People Alliance.

5.According to the applicant, she was abused by her husband who had slapped her and attacked her with hard objects. He attempted to kidnap her daughter. He had even invited his friends to rape her at home, though they did not do so. Details of her story are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000064_2022_files/the_Board's_Decision.pdf.

The Director’s Decision

6.Since the Director had considered her torture claim and rejected it, the Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision dated 27 November 2017, the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 16 April 2018, the Board conducted an oral hearing. She had given oral evidence before the Board.

9.Having considered the applicant’s evidence, the Board found:

(1)   it did not believe that she will be harmed or killed by her husband of his friends if she were refouled to Sri Lanka; [48]

(2)   the evidence she gave for the events after she had come to Hong Kong was hearsay and the Board did not attach much weight to it; [49]

(3)   she raised her claim for protection after she was arrested, therefore her conduct adversely affects her credibility of her evidence; [51]

(4)   her past events did not attain a minimum level of severity as envisaged by Ubamaka v Secretary for Security [2013] HKC 75; and

(5)   relocation within Sri Lanka is viable if she returns to Sri Lanka. [53]

10.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 17 January 2022 for leave to apply for judicial review of the Board’s Decision.

12.The applicant did not raise any specific ground to challenge the Board’s Decision. Nor did she explain her late application.

DISCUSSION

13.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. Though the delay is only 2 days, as a matter of principle, I shall consider the merits of the applicant’s case.

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she had stayed in Hong Kong for about 20 years and she had not committed any crime. She further said that she understood the Board’s Decision and only wanted the Court to review her case.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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.”

17.The applicant has failed to raise any valid ground to challenge the Board’s Decision.

18.The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

19.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.     

Dated the 12^th day of September 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

Form CALL-1