CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2324 of 2020
BETWEEN
Randunu Pathirannahelage Sumith Premakumara
Applicant
and
Torture Claims Appeal Board/
Putative
and
Director of Immigration
Putative
Interested Party
Application for Leave to Apply for Judicial Review
Following;
Order by Deputy High Court Judge K.W. Lung :
1. The extension of time for the application for Judicial Review be refused; and
2. The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
THE APPLICATION
1. The Director of Immigration (“the Director” had made 2 decisions for the applicant’s non-refoulement claim, namely:
(1) Notice of Decision dated 18 June 2015 on the Torture risk, BOR 3 risk and Persecution risk (the Director’s 1st Decision”); and
(2) Notice of Further Decision dated 28 April 2017 on BOR 2 risk (“the Director’s 2nd Decision”)
2. The applicant appealed the Director’s Decisions to the Board. The Board had issued 2 Decisions:
(1) Decision dated 9 March 2017, dismissing his appeal against the Director’s 1st Decision (“the Board’s 1st Decision”).
(2) Decision dated 29 October 2020, dismissing his appeal against the Director’s 2nd Decision (“the Board’s 2nd Decision”).
3. The applicant applies for leave to apply for judicial review of the Board’s 2nd Decision.
4. As the facts of the Board’s 2nd Decision are the same as those in the Board’s 1st Decision. I shall take into consideration of the facts of the Board’s 1st Decision in the assessment of the Board’s 2nd Decision.
5. The applicant did not ask for a hearing.
The applicant
6. The applicant is a national of Sri Lanka. He is an illegal immigrant. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by Athula and his supporters (“his enemies”) because Athula blamed him for causing the death of brother and he wanted to take revenge on him.
7. Details of the applicant’s story can be found in the Board’s 1st Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002324_2020_files/1st_Board's_Decision.pdf . See also the Board’s 2nd Decision by hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002324_2020_files/2nd_Board's_Decision.pdf .
The Director’s Decisions
8. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).the
9. By the Director’s 1st and 2nd Decisions, the Director refused the applicant’s claim for the reason that it was unsubstantiated.
The Board’s Decisions
10. The applicant appealed the Director’s 1st Decision to the Board. On 4 July 2016, the Board conducted an oral hearing. However, he was absent despite several attempts made to locate him. The Immigration Department informed the Board that he had absconded. The Board proceeded to consider his appeal in his absence in the evidence before it.
11. Having considered the evidence and materials, the Board found the facts below.
(1) The applicant’s fear of ill-treatment is unlikely to materialize. [39]
(2) State protection will be available to him if he returns to Sri Lanka. [42]
(3) Internal relocation is viable, one option being Hasalaka. [43]-[47]
12. For the reasons above, the Board, by the Board’s 1st Decision, dismissed the applicant’s appeal and affirmed the Director’s 1st Decision.
13. The applicant did not apply for leave for judicial review of the Board’s 1st Decision.
14. The applicant appealed the Director’s 2nd Decision to the Board. The Board conducted oral hearing on 28 May 2020, 12 June 2020 and 3 July 2020. The applicant had given oral evidence and answered the Board’s questions. Having considered the evidence, the Board made the findings below.
(1) The applicant’s evidence was conflicting and unbelievable. [53]
(2) Even if the information were accepted, the Board would still dismiss his claim on BOR 2 risk for those reasons set out in paragraphs 55-68.
15. For the reasons above, the Board, by the Board’s 2nd Decision, dismissed the applicant’s appeal against the Director’s 2nd Decision.
Application for leave to apply for judicial review of the Board’s Decision
16. The applicant has filed Form 86 dated 26 November 2020 for leave to apply for judicial review of the Board’s 2nd Decision.
17. In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decisions.
DISCUSSION
18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 , §14 (1).
19. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
20. The applicant has not raised any valid ground to challenge the Board’s findings.
21. In any event, since the applicant failed in his claim on BOR 3 risk, he has no arguable case for his claim on BOR 2 risk as the Court of Appeal held in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48 , Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022:
“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”
22. In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2nd Decision.
DISPOSITION
23. I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s 2nd Decision. Accordingly, I dismiss his application.
Dated the 7th day of November 2025
(Klein Tse)
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 :
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);
Sent to the Applicant Randunu Pathirannahelage Sumith Premakumara
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 7/11/2025Torture Claims Appeal Board/Non-refoulement Claims Petition Office Director of Immigration Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)
Form CALL-1
Summary Full Judgment Citations Court High Court of the Hong Kong Special Administrative Region, Court of First Instance Procedural posture Application for leave to apply for judicial review of the Torture Claims Appeal Board's decision dismissed. Issues Whether the applicant has valid grounds to challenge the Board's decision regarding non-refoulement claims. Whether the applicant's application for an extension of time to apply for judicial review should be granted. Holdings The application for an extension of time for the application for judicial review is refused. The application for leave to apply for judicial review is dismissed. Legal principles The court's role in judicial review is supervisory, ensuring compliance with public law requirements without usurping the fact-finding powers of the Board. A claim for judicial review must demonstrate a realistic prospect of success; failure on one claim negates the viability of related claims. Disposition The application for leave to apply for judicial review is dismissed, and the extension of time is refused. Key citations TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48
Citation RANDUNU PATHIRANNAHELAGE SUMITH PREMAKUMARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE, HCAL 2324/2020
Case Number HCAL 2324/2020
Court Court of First Instance (CFI)
Decision Date 7 November 2025 Parties Applicant(s): Randunu Pathirannahelage Sumith Premakumara, consideration of documents and being absent in open court, Notes for the : If leave has been granted, the or the ’s solicitors must, a) serve on the 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 proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5))
Respondent(s): Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
RANDUNU PATHIRANNAHELAGE SUMITH PREMAKUMARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE ([2025] HKCFI 4834) | Common Laws.ai