Santhanam Chandrakumar Alias Jeyarasa Mathanaraj v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2899/2025

[2026] HKCFI 5509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2899 OF 2025

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BETWEEN

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D E C I S I O N

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The application

1.The applicant is represented by Messrs. Mike So, Joseph Lau & Co., solicitors assigned by the Director of Legal Aid Department. By summons filed on 8 September 2026, he applies for extension of time to appeal against the Court’s Form CALL-1 dated 1 April 2026 (“the Court’s decision”), which dismissed his application for leave to apply for judicial review of the Decision dated 16 December 2025 of the Torture Claims Appeal Board (“the Board’s Decision”).

2.Time for filing the notice of appeal expired on 15 April 2026[1]. The applicant is late for more than 4 months.

3.He was not legally represented in his application for leave to apply for judicial review of the Board’s Decision. He did not ask for a hearing. This Court dealt with his application on the papers.

4.In his affirmation in support of this application, the applicant said that he had obtained legal assistance from the Director of Legal Aid Department for his application.

5.Legal aid counsel has drafted the grounds in support of the application and written submissions, raising many issues, which were not in the original Form 86.

6.In the ex parte summons, the applicant asked for an order for, inter alia, appeal out of time, and amendments to Form 86.

7.As the Court has issued Form CALL-1 based upon the original Form 86, which does not contain the proposed amended grounds, to allow the application for amendments is tantamount to hearing of the application de novo. This Court does not have such power, unless the ex parte Order is set aside under Order 32, rule 6 of the Rules of the High Court. See the decision of the Court of Appeal in Re Cu Van Duc [2024] HKCA 641, para. 12.

8.Counsel for the applicant referred to Re: MD Zahidur Rahman Manik [2018] HKCA 766, Hon Lam VP and Yuen JA, as they then were, 29 October 2018, which bears similarities with this case as the notice of appeal and the submissions raise many grounds which had not been canvassed in the papers before this Court. The notice of appeal and submissions were prepared by counsel for the applicant. In that case, the Court of Appeal held:

“12. In Re Litoun Mounsy [2018] HKCA 537 at [11]; Re Tutul [2018] HKCA 552 at [15]; and Re Shrestha Mahesh [2018] HKCA 619 at [14], it has been held that in an appeal against the refusal of leave by a judge in the Court of First Instance, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. Further, the scope for new arguments to be run is limited. This Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time. It was also emphasized that if no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the board afresh as if it is a fresh application for judicial review.

13. Nothing in this judgment should be interpreted as derogation from the above general principles which we would affirm and remain as applicable to appeals of this nature. Notwithstanding those principles, this Court has a discretion to allow new grounds to be canvassed in the interest of justice and there had been instances where this Court was persuaded to reverse decision refusing to grant leave to apply for judicial review on new grounds: see for example Chee Fei Ming v Director of Food and Environmental Hygiene (No 2) [2016] 3 HKLRD 412; Ng Shek Wai v Medical Council of Hong Kong CACV 14 of 2014, 30 July 2014. However, that discretion is not to be exercised lightly, see Yu Hung Hsua Julie v Chinese University of Hong Kong [2016] 5 HKLRD 393; Wong Ho Tong v Director of Lands [2018] HKCA 330.”

9.I have considered counsel’s written submissions in support of the application. Suffice it to say, the amended application may have arguable merits. For example, the Board refused to provide an interpreter for the wife to give evidence at the request of the duty lawyer. In the Board’s Decision, the adjudicator did not give any reason for her refusal of providing an interpreter for the wife. The wife had already given her statement to the Board. However, the Board did not accept her evidence. The evidence proposed to be given by the wife must be other evidence than the evidence in her statement. But there is no information either in the Board’s Decision or in the applicant’s affirmation as to what evidence she would be giving before the Board. The Board also refused to arrange tele-conference for the mother-in-law, whose evidence by her statement was not accepted by the Board.

10.Whether such procedural irregularities will constitute an abuse of power has to be determined at the stage of the leave application. The Court of First Instance in Wong Chau Ming v Secretary for Civil Service [2023] HKCFI 2468, 19 October 2023, Coleman J as he then was, held:

“82. … What must be remembered in cases of this kind, which look to administrative not judicial processes, is that unfairness, procedural or substantive, must be found to constitute an abuse of power. The unfairness must be conspicuous in some way. Technical omissions, minor slips, inconsequential delays or errors of form that have no consequence, unless they in totality can be seen to have destroyed the integrity of the entire process, do not go to prove that administrative process is rendered unlawful.”

11.The main thrust of the Board’s Decision is the Board rejected the applicant’s evidence, saying that it was fabricated by the applicant for his non-refoulement claim, the same finding of the previous Board. This is a finding of the facts, having considered all of the evidence. The evidence of the wife and mother-in-law confirms that the applicant was, in fact, not a member of the LTTE. This does not support the applicant’s alleged fear that if he returns to Sri Lanka, he will be harmed or killed by the government officials who consider him to be a member of the LTTE. However, this issue cannot be determined at this stage.

12.I shall, therefore, grant an extension of time for the applicant to file the notice of appeal within 14 days from the date of this Order, unless the Department of Justice agrees to set aside the ex parte order and there be a re-hearing of the application on the amended Form 86. In view of the complexities in this matter, I consider a rolled-up hearing is appropriate.

13.There be no costs for this application, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

14.Shortly before this Decision is published, the solicitor acting for the applicant lodged with Court a letter dated 2 October 2026, which the Court received on 6 October 2026. In the letter, the solicitor acting for the applicant confirmed that the applicant requested arrangements for voluntary repatriation to Sri Lanka with his wife, which constituted formal notice of withdrawal of his non-refoulement claim.

15.The solicitor therefore intends to file an ex parte summons seeking the order in terms as follows:

(1) Leave to withdraw the summons dated 8 September 2026;

(2) No order as to costs; and

(3) The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

16.This Court shall now make an order in terms of paragraph 15.

17.A copy of this Decision shall be sent to the Department of Justice.

The applicant is represented by Messrs. Mike So, Joseph Lau & Co. assigned by the Director of Legal Aid