MALLIKA ARACHCHE THUSHARA SHANTHI KUMARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1349/2020

[2026] HKCFI 1383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1349 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;

1.  The Form 86 be amended on the court’s own motion.

2.  The applicant’s application for leave to apply for judicial review dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 29 June 2020, the applicant applied for leave to apply for judicial review (“Subsequent Leave Application”). The intended judicial review was erroneously stated as against the decision of the the Torture Claims Appeal Board / the Non‑Refoulement Claims Petition Office (“Board”) dated 27 May 2020, which date of the decision should have been the decision of the Director of Immigration (“Director”). In his decision (“Director’s Subsequent Decision”), the Director refused the applicant’s request (“Request”) for making a subsequent claim for non-refoulement under s 37ZO of the Immigration Ordinance. In the 3 earlier decisions of the Director dated 8 February 2013, 7 June 2016 and 6 June 2017 (“Director’s Earlier Decisions”), the Director rejected the non-refoulement claim under all applicable grounds[1].

2.  As stated above, the applicant had mistakenly referred to the Director’s Subsequent Decision as that of the decision of the Board, I therefore order the amendment to the Form 86 with the consequential amendments by striking out the Board as the proposed respondent and the interested party stated in the Form 86.

Background

3.  The background as taken from the Director’s Earlier Decisions and the Director’s Subsequent Decision can be briefly stated as follows.

4.  The applicant was a national of Sri Lanka. The claim was based on a fear that, if refouled to Sri Lanka, he would be harmed or killed by Mahinda, who was then a Junior Minister of the People’s Alliance in Sir Lanka, Mahinda’s brother and the Army Kaluwa group (“Kaluwa”), a powerful group of elements/gangsters known in the applicant’s area.

5.  The applicant joined a political party called United National Party (“UNP”) around 1999/2000 and opened his own business at the market in January 2000. However, the applicant and his family received threats from the Kaluwa. As the threats from and the violence inflicted by Kaluwa intensified, the applicant left Sri Lanka for Hong Kong on 25 October 2004.

6.  The applicant’s appeals to the Board against the Director’s Earlier Decisions had been dismissed by the Board on 14 July 2017 (“Board’s Decision”). The Board did not find the applicant’s claims regarding him or any members of his family having been harmed or threatened by the Kaluwa credible. This was due to the Board’s assessment that the applicant’s evidence was vague and lacked any independently verifiable information. The Board found that the applicant would not be subjected to any risk of harm due to his political opinion if refouled. The applicant’s application for leave to apply for judicial review against the Board’s Decision was dismissed by the Court of First Instance on 4 May 2018, and his appeal to the Court of Appeal was dismissed on 26 February 2019. The applicant’s appeal to the Court of Final Appeal was dismissed on 26 June 2019.

7.  On 19 February 2020, the applicant made the Request. By a letter dated 18 March 2020, the Duty Lawyer Service representing the applicant sent a statement to support the Request. The lawyer representing the applicant further submitted 4 more letters and a document. The Request was based on the applicant’s claim that, if refouled, he would be harmed or killed by Mahinda.

8.  The applicant has not requested for an oral hearing. In the circumstances, this court will dispose of the Leave Application on paper.

The statutory provisions on subsequent claims

9.  Subsequent non-refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

“37ZO. Limitation on subsequent claim

(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

Discussion

10.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Director’s Decision and the applicant’s materials adduced.

11.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 provided no grounds at all. The grounds exhibited to the supporting affirmation were confusing and appeared to have been mostly concerning the Board’s Decision and the Director’s Earlier Decisions but not relating to the Director’s Subsequent Decision.

12.  In the Director’s Subsequent Decision, after the Director had taken into account the facts and findings he made in the Director’s Earlier Decisions as well as the Board’s Decision, the Director found that the recent events of violence referred to the latest documents did not show that the unknown attackers were related to his enemies. The Director found that the applicant’s claim of the change of circumstances was not substantiated. The Director found that the Request had no realistic prospect of success and refused it. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

13.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness. The applicant’s written grounds in the supporting affirmation were vague and did not condescend to particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicant’s intended challenge to the Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

The removal of the applicant

14.  The court was recently notified by the Director by fax dated 18 November 2025 that the applicant had been removed from Hong Kong on 10 March 2025.

Orders

15.  The Form 86 be amended on the court’s own motion.

16.  The applicant’s application for leave to apply for judicial review dismissed.

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