Basnayaka Mudiy Anselage Dinesh Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 961/2022 [2026] HKCFI 4507 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 961 of 2022 BETWEEN
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 Levy:
Introduction 1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 19 September 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 6 March 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decisions of the Director of Immigration (“Director”) dated 20 June 2013 and 9 July 2018 rejecting the applicant's non-refoulement claim respectively on the applicable grounds[1] of torture risk and 3 other risks. The Board’s Decision can be viewed at the following hyperlinks: - 2.In his Form 86, the applicant did not name any interested party. As the Director should have been the proper putative interested party, the Form 86 shall be amended accordingly. 3.The basis of the applicant’s claim was that, if refouled to Sri Lanka, he would be harmed or killed by the Sri Lankan government due to the applicant’s previous involvement with the Liberation Tamil Tigers Elam (“LTTE”). The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision. 4.Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 23 July 2026. A notice of hearing with a reminder[2] of the consequence of absence dated 18 June 2026 was sent to the applicant’s last known address by ordinary post. The applicant was absent from the hearing. Before the hearing, phone calls were made to the applicant’s given telephone number before the hearing but to no avail. Since the information before this court shows that the said notice of hearing has not been returned undelivered through the post, and that the applicant had been separately notified by phone, this court will dispose of the Leave Application according to the materials already placed before the court. Discussion 5.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[3] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced. 6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit. Apart from making some averments in the supporting affirmation in relation to the decision of the Director, the applicant provided no grounds at all in either his Form 86 or supporting affirmation. 7.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[5] In the present case, the Board found that when the applicant left Sri Lanka in 2005, he was escaping from the LTTE. However, the Board found that the risk of danger from the LTTE ended when the LTTE was eliminated by the Sri Lanka government in 2009. As for the applicant’s claimed fear of the Sri Lankan army due to his connection with his half-brothers who had worked for the LTTE camp before the end of the civil war, the Board found, based on the relevant COI, that the applicant would unlikely be subjected to risk of harm from them as the applicant did not belong to any of the risk grounds as in that he was not a Tamil and had never been a LTTE cadre or a sympathizer/supporter of LTTE. The Board found that his claim of risk was therefore far-fetched and speculative. The Board found that the past ill-treatment also failed to reach the requisite level of severity. The Board also found that state protection and internal relocation would be reasonably available. 8.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant has not shown any valid grounds in support of the Leave Application. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6]. Whether to grant extension of time 9.More importantly, there is a delay of in the filing of the Leave Application. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. This application is late for about 1 year and 3 months, which delay is substantial. A good reason for the delay shall be required. 10.The applicant provided no explanation at all for the delay. In the absence of reason for the delay, and importantly, the lack of merits, I refuse to exercise my discretion to grant extension of time. Order 11.The Form 86 be amended on the court’s own motion. 12.There shall be no extension of time to the applicant to file the Leave Application out of time. 13.The applicant’s application for leave to apply for judicial review be dismissed. Dated the 14th day of August 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 grounds are risk of torture under Part VIIC of the Immigration Ordinance (“torture risk”) , BOR 2 risk (this refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”), BOR 3 risk (this refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR) and persecution risk (This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol) under the USM (This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293. [2] “If the Applicant does not appear at the hearing, he/she will be deemed to have waived his/her right to make oral submissions at the hearing and the Court will deal with his/her application according to the paper already placed before the Court”. [3] Re Zunartyah [2018] HKCA 14 at [23]. [4] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142]. [5] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. [6] Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 |
Cases cited in this judgment