WIJEMUNI ROSHAN SANJEEWA GUNARATHNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 50/2025, [2025] HKCA 463

On appeal from [2024] HKCFI 2458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 50 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 106 OF 2024)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 4 October 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decisions of the Director of Immigration (“Director”) and Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim[1].

2.  On 8 January 2025, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance. The summons was dismissed by the judge on 27 February 2025[2].

3.  On 11 March 2025, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4.  The applicant is a national of Sri Lanka. He had raised a torture claim in Hong Kong in 2005 which was rejected by the Director. His petition to the Security Bureau was dismissed on 15 March 2012. He had also lodged a non-refoulement claim which was subsequently withdrawn. He was then repatriated to Sri Lanka on 25 February 2016.

5.  On 23 September 2017, he was repatriated to Sri Lanka for the second time after the Director refused to allow him to make a subsequent claim under the Unified Screening Mechanism.

6.  On 18 September 2022, he was arrested for illegally remaining in Hong Kong. He lodged a non-refoulement claim on 10 November 2022. He was allowed to make a subsequent claim by the Director on 1 December 2022. His claim was made on the basis that, if refouled, he would be harmed or killed by a gang affiliated with the United National Party.

The decisions of the Director and the Board

7.  By a Notice of Decision dated 1 March 2023, the Director rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

8.  The applicant appealed against the Director’s decision to the Board. He attended the hearings before the Board on 14 September and 16 November 2023 respectively. The Board found no objective evidence to support the applicant’s assertions. Taking into account the applicant was only a low-tier worker in Sri Lanka Podujana Peramuna, the political environment of Sri Lanka, as well as the short duration, low frequency and low brutality of the alleged ill-treatment, the Board found that the applicant’s fear is not well founded. The Board further found reasonable state protection will be available to the applicant in Sri Lanka and he can reside and work in other cities in Sri Lanka to negate the perceived risk. Therefore, the Board rejected the appeal and confirmed the Director’s decision on 22 November 2023.

The intended judicial review

9.  On 9 January 2024, the applicant filed a Form 86 and an affirmation in HCAL 106/2024 to seek leave to bring judicial review against the decisions of the Director and the Board. The applicant attached the following grounds to his Form 86:

(1)  The decisions are incorrect, unreasonable and unfair, without adequately considering the potential threat of extra-judicial killings;

(2)  The Director failed to consider state acquiescence;

(3)  The Board had relied too much on the Country of Origin Information (“COI”) without having regard to the applicant’s personal background and experience;

(4)  The Director failed to consider the evidence that supports the applicant’s claim and ruled against him;

(5)  The Board’s decision is irrational;

(6)  The applicant was not given sufficient time to prepare evidence for his appeal before the Board.

(7)  There are no missing elements that would warrant the dismissal of the application.

The judge’s decision

10.  The applicant attended the hearing before DHCJ K W Lung on 19 August 2024. The judge held that the application against the Director’s decision fails as the Director’s decision has been superseded by the Board’s decision and hence is not susceptible to judicial review. The judge took the view that the applicant’s grounds are not supported by evidence and considered the Board’s decision well founded. The judge held that the applicant does not have any valid reasons to challenge the Board’s decision and concluded that there is no realistic prospect of success in the proposed judicial review. The judge therefore dismissed the leave application on 4 October 2024.

Grounds of Appeal

11.  In his supporting affirmation, the applicant only stated that he never received any correspondence from the High Court and was unaware of the rules regarding the 14-day time limit. He did not put forward any specific grounds of appeal against the judge’s decision.

Analysis

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 4 October 2024. The applicant was late by more than 2 months when he took out the summons at the court below on 8 January 2025. The applicant explained that he did not receive any correspondence from the High Court. On 4 October 2024, the court had sent the decision to the applicant by post to his address which was stated in his Form 86 and confirmed by him at the hearing on 19 August 2024. The mail was not returned by the post office. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15).

14.  The applicant also claimed that he was not aware of the rules regarding the time limit for appeal. Ignorance of the rules of the court is not an acceptable justification for the delay.

15.  Under these circumstances, the delay is inexcusable. The applicant must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

16.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.  The applicant did not provide any grounds of appeal in the present application. He failed to show that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. There is no prospect of success in the intended appeal.

18.  Therefore, we refuse to grant extension of time to appeal against the judge’s decision of 4 October 2024 and dismiss the summons filed on 11 March 2025.