Wewelvala Mangala Nilantha v. Director of Immigration
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HCAL 662/2026 [2026] HKCFI 3199 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 662 of 2026
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge K.W. Lung:
Observations for the Applicant: THE APPLICATION 1.This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 26 March 2026 (“the Director’s Decision”) refusing his subsequent claim on the applicable risks[1], which had been determined in his previous application under HCAL 3193 of 2019 (“the previous claim”). 2.The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process. 3.The applicant appeared before the Court on 18 May 2026. He admitted that he had lodged for non-refoulement protection in the previous claim and this is the second application. However, he said that apart from the same reason in his previous claim, he had also raised other reason as well. He asked the Court to review his case. The procedural history 4.The applicant is a national of Sri Lanka. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”). 5.The Director dismissed his claim because it was not substantiated. He appealed to Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board found that his evidence was not acceptable and his claim was unfounded and dismissed his appeal. 6.His application for leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance on 19 August 2025. He appealed to the Court of Appeal. The Court of Appeal dismissed his appeal on 15 May 2026. 7.By letter dated 17 October 2025, the applicant applied to the Director for making a subsequent claim for non-refoulement protection. By the Director’s Decision, the Director refused his application. The subsequent claim application 8.Under section 37ZO of the Ordinance, he has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success. 9.Upon the immigration officer’s advice, he had submitted additional materials in support of his application. 10.The immigration officer considered his evidence and found that the applicant relied on the same reason in his previous claim. He had also raised another 2 enemies who wanted to buy his cousin’s land at a price below the market price. His cousin refused. They threatened to kill his cousin and him because he was assisting his cousin to oppose them at that time. This happened in 2003 or 2004 before his previous clam, which he lodged in 2015. He did not disclose these 2 enemies in his previous claim. 11.The immigration officer did not accept that the applicant’s subsequent claim application satisfied the conditions under section 37ZO of the Ordinance and he refused his application. Application for leave to apply for judicial review of the Director’s Decision 12.The applicant filed Form 86 on 31 March 2026 for judicial review of the Director’s Decision. 13.In the affirmation in support of his application, the applicant did not raise any specific reason to challenge the Director’s Decision. He has only exhibited a copy of the Director’s Decision to his affirmation. Discussion 14.The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact-finding power. 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 Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted he relied on the same reason in his previous claim, but he said that he had raised another reason, i.e. the other 2 enemies in support of his subsequent claim. However, the 2 other enemies and the incidents did not happen after his previous claim. This is inconsistent with the statutory provision that there should be a change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success. 16.The immigration is therefore correct to refuse his application for a subsequent claim. 17.The applicant fails to show that he has any realistic chance of success in his intended judicial review of the Director’s Decision. 18.I dismiss his application for leave to apply for judicial review of the Director’s Decision. The RPO 19.Because of the applicant’s attempt to abuse the process, the Court has to protect its process to be abused again. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against him. See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1. 20.RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Direcctor of Immigration [2021] HKCFI 1991, by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021, § 9 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129, § 25. 21.The Court has called upon the applicant to appear before it to show cause why RPO should not be made against him. The RPO was explained to the applicant before the hearing. When asked whether he had anything to say about the proposed RPO, he said he had nothing to say. 22.I am therefore satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong only. I shall therefore make the RPO in terms below:
DISPOSITION 23.The applicant’s application is dismissed. 24.RPO in terms of paragraph 22 be made against the applicant. Dated the 3rd day of June 2026
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 [1] The applicable risks are:
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Cases cited in this judgment