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HCAL 1183/2020
[2025] HKCFI 5003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1183 OF 2020
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BETWEEN
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Colamba Hewage Nandana Saminda Silva |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 15 June 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 29 May 2020 (“the Board’s 2nd Decision”).
2. The Board decided that the applicant had not substantiated a case for non-refoulement protection on the ground of Risk of life (BOR 2 Risk[1]) under the Unified Screening Mechanism (“the USM”). The Board therefore dismissed the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 28 November 2017 (“the Director’s 2nd Decision”), which rejected the applicant’s non-refoulement claim on the ground of BOR 2 Risk, and confirmed the same.
3. The Director had previously assessed and rejected the applicant’s claim for non-refoulement protection on the grounds of Torture Risk[2], BOR 3 Risk[3] and Persecution Risk[4] under the USM on 11 February 2015 (“the Director’s 1st Decision”). The applicant appealed/petitioned against the Director’s 1st Decision to the Board on 26 February 2015. The Board dismissed the applicant’s appeal/petition and confirmed the Director’s 1st Decision on 10 April 2017 (“the Board’s 1st Decision”).
4. Thus, it was not necessary for the Board to deal with Torture Risk, BOR 3 Risk and Persecution Risk again in the Board’s 2nd Decision.
5. The Board’s 1st Decision and the Board’s 2nd Decision can be viewed in the following hyperlinks:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001183_2020_files/1st_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001183_2020_files/2nd_Board's_Decision.pdf
Amendments
6. In Form 86, the applicant named “T.C.A.B” as the proposed respondent and did not name any putative interested party, when the Board should be named as the putative respondent and the Director should be named as the putative interested party.
7. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.
The applicant’s case
8. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s 1st and 2nd Decisions, which can be viewed in the hyperlinks above.
9. In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, he feared being harmed or killed by a man named Jeewan, who had killed one of the applicant’s friends during a musical show at the end of 2004 as well as other people subsequently.
Oral hearing
10. The applicant requested for an oral hearing of the Leave Application, but he was absent at the hearing on 28 August 2025.
11. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
12. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
13. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
14. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 15 June 2020. The applicant merely stated in his affirmation that he could not agree with the Board’s 2nd Decision, Jeewan, who was a well-known underworld figure, wanted to kill him as he had asked the police to arrest Jeewan’s brother Nadeka, and Jeewan had already killed the applicant’s father’s younger brother, his father’s elder brother’s son and his father’s younger brother’s son.
15. The applicant attached to his affirmation the death certificates of three persons named Colomba Hewage Kithsiri De Silva, Colomba Hewage Ruwan Lasantha Silva and Colomba Hewage Rukmal Prasad De Silva respectively. The applicant stated that the main reason why he could not go back to Sri Lanka was due to all the happenings there.
Discussion
16. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
17. Thus, the applicant cannot ask this court to re-assess the facts of his case or his non-refoulement claim afresh. The matters that were stated in the applicant’s supporting affirmation, including the risk from Jeewan and the 3 death certificates had all been presented to the Board. If the applicant is seeking to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
18. However, this court will still scrutinize the Board’s 2nd Decision for any errors of law, procedural unfairness or irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
19. In assessing the applicant’s petition, the Board held an oral hearing on 23 December 2019 and the applicant was present. Thus, the applicant did have the chance to present his case to the Board in person.
20. The Board questioned the applicant for details of his claims and examined the death certificates that were produced by the applicant but found that the applicant failed to substantiate a case on BOR 2 Risk.
21. At the Board’s hearing, the applicant stated that these men were killed because they had helped him. When being asked by the Board why he did not mention in his previous claims that they had helped him, the applicant answered that he was not being asked. The Board noted that the applicant departed Sri Lanka on 7 July 2007. Two of the three death certificates produced by the applicant showed that two of the deceased persons died in 2004 and 2005 respectively. The Board further asked the applicant that in 2004 he was still in his country and he must have known that they were being killed, but the applicant merely stated that the third certificate carried a mistake and the date of death should be in 2006.
22. Having considered the death certificates, the Board found that these certificates did not advance the applicant’s claims. The death certificates only indicated that some people were dead but could not provide the reasons. The applicant claimed that these persons belonged to one family and they were killed because they had helped him. In his previous claim, he did not mention anything about this new information. Further, save that the dead persons carried the same surname, there was no evidence that showed their relationship with the applicant. Furthermore, there was no evidence in support of the allegation that they were killed because they had helped the applicant as alleged.
23. The same Board member had dealt with the applicant’s previous claim. The Board did not accept the applicant’s explanation that he was not being asked so that he did not disclose the new information in his previous claim. The Board further did not accept that the authority in his country who issued the death certificate would make such a serious mistake about the date of death.
24. Apart from the materials discussed above, the applicant did not submit any new facts, information and materials in his claim under BOR 2 Risk. The applicant confirmed at the hearing that he was not a criminal wanted by the police in his country and he was not going to face serious charge or punishment in his country.
25. Having considered the evidence of the applicant as a whole, the Board found that the applicant had failed to prove that there was a genuine and substantial risk, as well as a personal risk of irreparable harm, either in the receiving country or in any country to which he might subsequently be removed.
26. Thus, the Board concluded that the applicant’s claim for non-refoulement protection on the ground of BOR 2 Risk failed.
27. The assessment of evidence and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
28. Having rigorously examined the Board’s 2nd Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s 2nd Decision. The Board’s 2nd Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
29. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
30. For reasons aforesaid, the Leave Application is dismissed.
Dated the 23rd day of October 2025
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( Irene LEE )
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/Handed to the applicant/the applicant’s solicitors
on: 23 October 2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 23 October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
BOR 1085/17/12/5/S29
USM 1062/15/2/210/S26
Director of Immigration
Putative interested party’s ref. no.:
RBCZ 90001537/17
(previous ref: RBCZ 353/08)
QA T/C 684/08
(Formerly RBCZ 353/08)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[2] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] 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.
[4] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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