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HCAL 1299/2020
[2026] HKCFI 87
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1299 of 2020
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BETWEEN
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SANDANAM RAVEENDRA KUMAR |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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 (Non-refoulement Claims) YW Hew:
1. The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and adding the words “/Non-Refoulement Claims Petition Officer” before the words “Decision date”; and
2. The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
Introduction
1. The Applicant is a national of Sri Lanka. By a Form 86 filed on 24 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 24 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision which describes itself as being one of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 11 December 2019 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.
2. The Applicant sought an oral hearing of his application. He attended that scheduled for 28 August 2025. He made some submissions, which I will outline below.
Background
3. This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:
(1) The Applicant claimed non-refoulement relief on the basis that if he were sent back to Sri Lanka, he would be harmed or killed by supporters of the UPFA;
(2) A claim for non-refoulement relief was initially submitted on 7 January 2009, but was withdrawn on 4 November 2013 before it had been determined with reference to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[2];
(3) A claim for non-refoulement relief was subsequently made, and was assessed by the Director of Immigration (“Director”) on the grounds of BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5]. The Director rejected the claim in a decision dated 29 March 2019 (“Director’s Decision”);
(4) The Applicant sought relief via a Notice of Appeal, and the decision-maker held hearings attended by the Applicant on 26 July and 11 October 2019; and
(5) The decision-maker issued the TCAB Decision on 11 December 2019, in which the Applicant’s appeal/petition was dismissed, and the Director’s Decision was confirmed.
Legal Principles
4. An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).
5. It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).
6. In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).
7. Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:
(1) The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;
(2) Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;
(3) If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and
(4) Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.
See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.
Discussion
8. The application was filed more than 3 months after the TCAB Decision, and over 3 months out of time. I do not see any good reason to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review. This is for the following reasons.
9. Dealing, firstly, with the merits of his application, the Applicant did not identify or set out any grounds of judicial review in the Form 86 or in the Affirmation. Rather, he merely said that he does not agree with the TCAB Decision, and that he cannot go back to his home country as his life is in danger over there. At the hearing, the Applicant submitted that he could not go back to Sri Lanka as his “problem is not finished yet”. Such matters are not grounds of judicial review, and there is no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.
10. Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.
11. The decision-maker set out the Applicant’s background, immigration and procedural history, the documents at and conduct of the hearing, the Applicant’s claims, an outline of conclusions reached in the Director’s Decision, and the relevant law and principles in relation to evaluating risk and credibility (Paragraphs 1 to 25).
12. The decision-maker then set out its findings of fact, wherein it concluded (with reference to salient reasons) that nearly everything the Applicant had said could be given no credence whatsoever, and that while it was accepted that the Applicant had been involved in a fight in which he knocked a man unconscious with a metal bar, it was not accepted that that had anything to do with politics or had any subsequent consequences for the Applicant (Paragraphs 26 to 44). Based on the information available and the decision-maker’s findings of fact (including that the Applicant had no political profile whatsoever), the decision-maker also concluded that the Applicant either faced no risk of any kind upon return to Sri Lanka, or (in the unlikely event the police wished to pursue the matter after so many years of inaction) would only face legitimate prosecution for criminal offences relating to his involvement in a fight in 2006 (Paragraphs 45 to 50).
13. The decision-maker then went on to conclude that given the findings of fact, the Applicant had failed to establish Persecution Risk, BOR 2 Risk, and BOR 3 Risk, that the appeal/petition failed on all grounds. The Director’s Decision was affirmed (Paragraphs 51 to 55).
14. I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding the evidence, credibility, and risk of harm, which are matters primarily within the province of the decision-making body. Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Persecution Risk, BOR 3 Risk, and BOR 2 Risk.
15. I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.
16. Secondly, and as mentioned, there is undue delay in this case as the leave application was filed over 3 months out of time. Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation was given in the Affirmation for the undue delay notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above. At the hearing the Applicant admitted that he was not aware of the deadline and apologised. This is clearly not an acceptable or credibly valid explanation for the delay
17. Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event. Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent. Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.
Conclusion
18. In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review be dismissed.
Dated the 28th day of January 2026
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(Teresa Ng)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 28 January 2026
SANDANAM RAVEENDRA KUMAR
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28 January 2026
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15601/19/2/120/S358
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1109/18 (formerly RBCZ 2001336/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001299_2020_files/the_Board's_Decision.pdf
[2] As subsequently reflected in Part VIIC of the Immigration Ordinance, Cap 115.
[3] The risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] The risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] The risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[6] In that the presence of a credibly valid explanation for the delay will strengthen, and the absence of an acceptable explanation will weaken, the Applicant’s request for what is an indulgence to be granted in the court’s discretion.
[7] Although where an applicant is many months out of time, leave may be refused however strong the complaint might otherwise be, and an applicant who sleeps upon his rights may be barred from pursuing them in a judicial review even though he may have a meritorious case (AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at §27(iii) as approved in the other cases cited below, in particular H v Director of Immigration (2020) 23 HKCFAR 248 at supra at §37(2)).
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