WICKRAMASINGHE GODEVITHANAGE MANJULA PRASADH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1626/2020

[2025] HKCFI 4573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1626 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 7 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 12 May 2020 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 26 March 2019 in refusing the Applicant’s non-refoulement protection claim. He named the TCAB as the proposed respondent, and both the TCAB and the DOI as interested parties.

2.  The TCAB Decision concerned only three of the four applicable grounds under the USM, as the Applicant’s claim based on torture risk had been made in and refused by the DOI in 2012, and the refusal was affirmed by the TCAB in 2014.

3.  The Applicant requested for a hearing and attended the same. When asked if he had anything to add, he informed me that his wife passed away 4 months ago back in his home country but he was not able to go back. With sympathy, this is not a matter relevant to the issues at hand in this application.

Background

4.  The Applicant is a national of Sri Lanka. He seeks non-refoulement protection on the basis that if he was returned, he would be harmed or killed by people affiliated with a rival political party. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.  The Applicant raised a general complaint that the TCAB Decision was “substantially unfair” and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in his affidavit filed in support of this application.

7.  Looking at the TCAB Decision, the TCAB considered the Applicant’s case and evidence, including his testimony at the hearing before it [9-20, 26-37] and the relevant COI [21-25]. The TCAB thoroughly analysed the same, as well as the Applicant’s credibility [39‑46], before coming to the finding that his allegations were not made out [47-51].

8.  The TCAB then proceeded to analyse each of the three applicable grounds before it, having in mind the correct principles in respect of each [see Attachment], and concluded that none was made out [52-58].

9.  I therefore do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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