Hewapadi Gedara Nishantha Rohana Kumara Hewage v. Torture Claims Appeal Board

HCAL 1076/2021

[2026] HKCFI 4056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1076 OF 2021

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D E C I S I O N

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Background

1.By way of summons filed on 18 May 2026 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 22 April 2026, which dismissed the applicant’s application for leave to apply for judicial review in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 25 May 2021 (“the Board’s Decision”).

2.Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, stipulates that “Where an application for leave is refused by a judge …, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order”.

3.In Re Li Jing [2015] 2 HKLRD 933, it was held that the time for lodging an appeal against the refusal of granting leave to apply for judicial review started to run from the date of the making of the order, not from the date when the sealed order was issued, nor from the date when the sealed order was mailed, and no account should be taken of the fact that the applicant received the sealed order late (see also Re Gurung Min Bahadur [2018] HKCA 226).

4.As my order was made on 22 April 2026, the last day for the applicant to lodge an appeal was on 6 May 2026. Thus, the time for appealing against my order has expired, and the applicant requires leave from this court to appeal out of time.

The applicable law

5.In considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted (see Jagg Singh v Torture Claims Appeal Board and another [2020] HKCA 844).

6.However, the crucial consideration in such an application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review (see Re Gurung Min Bahadur, supra), and the court will not grant extension for a hopeless appeal to be pursued (see Re Adumekwe Rowland Ejike [2019] HKCA 702).

Discussion

7.The applicant attached a document with the title “REASONS FOR DELAY” to the Summons, in which the applicant gave the reasons for his delay in filing the intended appeal. In sum, the applicant explained that he only received a letter dated 16 April 2026 from this court informing him that the decision for his leave application would be ready within one month, but he never received the decision from this court. Due to the absence of notification, the applicant manually monitored the Judiciary website’s legal reference systems and discovered that the decision had been uploaded and dated 22 April 2026. He then made every conceivable effort to prepare the Notice of Appeal and the Summons immediately without any intentional or calculated neglect on his part.

8.At the hearing of the Summons on 2 July 2026, the applicant also explained the delay by saying that he did not receive the decision. He confirmed that the address used by this court to send him the letter dated 16 April 2026 was his correct address, he did not move to another address and it was still his correct address at the time of the hearing on 2 July 2026. However, when I pointed out to the applicant that the decision was sent to him at the same address on 22 April 2026, he could not offer any explanation as to why he did not receive the decision at the same address.

9.Moreover, at the hearing on 2 July 2026, the applicant alleged that it was his friend who asked him whether he had received the decision and when he said no, his friend checked the internet and helped him to download the decision for him. This is not what he stated in the said document attached to the Summons. In that document, the applicant never mentioned that his friend asked him about the decision and helped him to check and download the decision. On the contrary, what the applicant stated in the said document was that it was through his self-directed monitoring that he discovered the decision.

10.Thus, with these contradictory explanations, I do not find the applicant’s explanations satisfactory and hence there is no reasonable excuse for his delay in lodging the intended appeal.

11.The applicant attached another document with the title “GROUNDS OF APPEAL” to the Summons, in which the applicant gave three grounds of appeal, namely: (1) Error of Law and Fact Regarding Physical Capacity and Internal Relocation; (2) Wrongful Characterization of Political Persecution as a “Private Dispute”; and (3) Failure to Properly Assess Sufficiency of State Protection.

12.At the hearing of the Summons on 2 July 2026, the applicant confirmed that he relied on the grounds stated therein. He also elaborated the grounds by saying that it was not reasonable for the Board to decide that he was physically fit to go to other places in his country to live, as he had a lot of injuries and had submitted his medical report. He also said that his claim was not based on a private matter but due to politics and he could not get government protection because the government was related to the underworld gangsters and the government had no control over them.

13.In Ground (1), the applicant contends that I erred in law by upholding the Boards’ finding (at paragraph 53 of the Board’s Decision) that the applicant was an “able-bodied male” for whom internal relocation would not be “unduly harsh”, that I failed to apply anxious scrutiny to the uncontradicted evidence recorded at paragraph 19 of my decision, where the applicant stated that his head and shoulder were structurally impaired due to past torture, and that I erred by failing to consider how a chronic physical impairment vitiated the economic and social viability of relocation.

14.First of all, in paragraph 19 of my decision, I only stated what the applicant said at the oral hearing before me, in that the applicant alleged that he could not stay in other places as he had been tortured and his head and shoulder were not working properly. This is purely the applicant’s allegation, not uncontradicted evidence. In fact, it was the Board’s findings that the applicant suffered only minor injuries and had exaggerated his injuries (see paragraphs 23(1)(vi), (2)(iv) and (3)(iv) of the Board’s Decision).

15.These were findings of facts that the Board was entitled to make and I see no errors or irrationality in such findings. With just minor injuries, the Board was also right to find that the applicant was “an able-bodied male” and could relocate to other parts of Sri Lanka in paragraph 53 of the Board’s Decision. Thus, there is no merits in Ground (1) at all.

16.As to Ground (2), the applicant alleges that I erred in law by failing to recognize that the Board miscategorized systemic, targeted political violence as a “purely private dispute” in paragraphs 34 and 47 of the Board’s Decision. However, it was the Board’s findings that apart from being assaulted by two police officers in a particular police station, no other government officials had been involved in the applicant’s dealings with PAP or TK, that the assault of the two police officers in that particular police station was an individual act which was not consented to or approved by the police force, that the government or the police force did not have the knowledge about the assault and could not have consented to the misdeed of individual police officers, and that neither PAP nor TK were government officials (see paragraphs 32 to 34 of the Board’s Decision).

17.It was also the Board’s finding that the applicant’s fear of ill-treatment did not fall within the definition of persecution in that it was purely a private dispute between him, TK and members of PAP, and was not on account of race, religion, nationality, membership of a particular social group or political opinion (see paragraph 47 of the Board’s Decision).  

18.Again, these were findings of facts that the Board was entitled to make, and I did not find any errors or irrationality with these findings. Thus, with these findings, there is no basis for the applicant to allege that the assault was systemic, targeted political violence. Ground (2) has no merits either.

19.The applicant alleges in Ground (3) that I erred by failing to identify that the Board’s assessment of “State Protection” relied entirely on generalized, optimistic administrative goals from country information websites while ignoring the specific historical evidence of his case, and that I erred in finding that general state protection was reasonably available given the specific, localized failures experienced by the applicant.

20.However, the Board’s finding on state protection was based on objective, fully-referenced and relevant country of origin information (“COI”) as stated in paragraphs 28 and 29 of the Boards’ Decision. The Board had in fact considered both COI that corroborated the applicant’s assertion and those showing that reforms had been and were on-going in Sri-Lanka before coming to the conclusion that state protection was available to the applicant upon his return to Sri Lanka.

21.Moreover, as pointed out by the Board in paragraphs 50 and 51 of the Board’s Decision, the PAP people were no longer in power and the party that the applicant supported, ie UNP, was the ruling party. Thus, there was hardly any ground for the applicant to contend that reasonable state protection was not available to him, and Ground (3) has no merits at all.

22.For this application to be successful, the applicant must demonstrate that this court had made errors of law or failed to take account of relevant matters already placed before this court or was otherwise plainly wrong (see Nupur Mst v Director of Immigration [2018] HKCA 524).

23.As aforesaid, the applicant failed to demonstrate any of the above, and hence there is simply no valid ground for the intended appeal.

24.As there is no satisfactory explanation for the applicant’s delay in lodging the intended appeal, and there is no reasonable prospect of success in the intended appeal, I am not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

25.For reasons aforesaid, the Summons is dismissed.

The applicant acting in person