HARABAGE ROSHAN KUMAR AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 3758/2019

[2025] HKCFI 3375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3758 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.  The time for all the applicants to file the application for leave to apply for judicial review be extended retrospectively to 17 December 2019.

3.  Leave granted to all the applicants to apply for judicial review in respect of the decision of the Torture Claims Appeal Board dated 14 May 2019.

Observations for the applicants:

The Leave Application

1.  By way of Form 86 dated and filed on 17 December 2019, the applicants 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 14 May 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003758_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicants’ claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 29 August 2018 (“the Director’s Decision”).

3.  The 1^st applicant is the father of the 2^nd, 3^rd and 4^th applicants. The applicants (together with the 1^st applicant’s wife) had previously lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Torture Claim”) on 13 December 2008, which was rejected by the Director on 20 August 2012.

4.  The applicants (together with the 1^st applicant’s wife) filed a petition against the Director’s said decision on 14 September 2012, and the petition was dismissed on 16 October 2012.

5.  The applicants (together with the 1^st applicant’s wife) applied for non-refoulement protection again under the USM by way of a letter dated 19 February 2014 and then by way of supplementary claim forms submitted on 4 May 2018.

6.  However, the 1^st applicant’s wife withdrew the application for non-refoulement protection on the same day as the submission of the supplementary claim forms. Thus, the Director only dealt with the applicants’ non-refoulement claims without the 1^st applicant’s wife.

7.  As the Torture Claim had been disposed of, the Director assessed the applicants’ claims under the USM in relation to their BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but not Torture Risk[4]. The applicants’ claims based on the aforesaid three risks were rejected by the Director’s Decision, and the applicants lodged their appeal/petition to the Board on 12 September 2018.

8.  In the Board’s Decision, the Board mentioned that the applicants’ appeal/petition was from a decision of the Director dated 15 September 2017, which was clearly a mistake as the Director’s Decision was dated 29 August 2018.

9.  As can be seen from the Board’s Decision, although the Board was aware that the Director only dealt with the aforesaid three risks, the Board in its conclusions found that the applicants failed to substantiate their claims in relation to all four risks, ie Torture Risk was included.

Amendment

10.  In Form 86, the applicants named the putative respondent as “TORTURE CLAIMS APPEL BOARD NON-REFOULEMENT CLAIMS PETITION OFFICE”. The applicants spelt the Board’s name wrong and included the Non-refoulement Claims Petition Office as a putative respondent.

11.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

12.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

Late application

13.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicants had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

14.  However, the applicants filed Form 86 only on 17 December 2019, which was more than 7 months after the Board’s Decision (made on 14 May 2019). The applicants were therefore late for more than 4 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicants to make the Leave Application.

15.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

16.  The applicants did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. Although the delay was long, this court finds that the intended judicial review does have some merits as discussed below. Having considered the above criteria, this court is prepared to grant an extension of time retrospectively for all the applicants to file the Leave Application on 17 December 2019.

The applicants’ case

17.  It is not necessary for this court to repeat the details of the applicants’ case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

18.  In sum, the applicants claimed for non-refoulement protection due to their fear of harm emanating from the 1^st applicant’s enemies in Sri Lanka because of his affiliation with the United National Party and his confrontation with them in 1998.

Oral hearing

19.  The applicants requested for an oral hearing of the Leave Application and their case was heard on 29 May 2025.

20.  At the hearing, the 1^st applicant confirmed that he had given all the documents to the Board but the Board did not go through the documents correctly. The 2^nd, 3^rd and 4^th applicants believed that it would be dangerous for them to return to Sri Lanka just based on what the 1^st applicant told them.

Grounds for judicial review

21.  The applicants are 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).

22.  The applicants did not provide any ground for the intended judicial review in Form 86, nor in the 1^st applicant’s supporting affirmation dated 17 December 2019.

Discussion

23.  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).

24.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced by the applicants for the intended judicial review.

25.  In assessing the appeal by the applicants, the Board arranged an oral hearing on 18 April 2019. The notice of hearing was duly served on the applicants but they failed to attend the hearing. The Board was unable to make contact with them. The Board then sent a notice pursuant to section 15 of Schedule 1A of the Immigration Ordinance to the applicants on 18 April 2019. The notice stated that unless the applicants provided a satisfactory written explanation of their failure to attend the hearing together with any supporting documentary evidence within seven days of such notice, the Board would determine the appeal in their absence. The applicants did not respond to the notice. Thus, the Board decided to determine the appeal/petition in their absence.

26.  As can be seen from the Board’s Decision, the Board raised a number of issues that it would have liked to clarify and obtain further details from the applicants, but could not do so because of their absence at the hearing.

27.  The Board was of the view that the burden upon the applicants in terms of their factual claims was a relatively light one, but it could not be discharged merely by making a set of very limited written assertions, which were untested and contained little real detail. The Board was also of the view that, in order to discharge the burden, the applicants were required to attend the hearing to give evidence, to answer the Board’s questions and deal with the matters that the Board would have liked to clarify and obtain further details. Their failure to do so and to provide any explanation for that failure led the Board to conclude that no weight could be attached to what were essentially mere assertions.

28.  The Board then concluded that on the limited information before it, it was not satisfied that the applicants’ non-refoulement claims based on Torture Risk, BOR 3 Risk, BOR 2 Risk and Persecution Risk were established.

29.  It seems clear to this court that the Board did not make any finding, or any adverse finding, on the credibility of the applicants’ case or on whether there was a basis for the claimed fear of harm. The Board concluded that the applicants had failed to establish their case on any of the applicable grounds under the USM simply because there was limited information before the Board when the applicants had failed to attend the hearing to clarify and provide further details on the issues it had in mind.

30.  In Re Hidayah [2018] HKCA 595, the Court of Appeal held that:-

“Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.”

31.  Thus, it is not correct for the Board to jump to the conclusion that the applicants failed to establish their non-refoulement claims simply because there was limited information without making any adverse finding of their credibility and without analyzing and assessing their claims on the basis that their case was plausible.

32.  Moreover, at the time of the Board’s Decision, the 2^nd, 3^rd and 4^th applicants were all minors. The Board did not make separate consideration for each of them. It could be that their claims were based on the same set of primary facts asserted by the 1^st applicant, but it is still wrong not to give consideration to their personal circumstances separately.

33.  As held by the Court of Appeal in Fabio Arlyn Timogan and Ors v Evan Ruth and Anor [2020] HKCA 971:-

“Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations”.

34.  Thus, the Board has clearly committed an error of law when it failed to give separate consideration to the 2^nd, 3^rd and 4^th applicants’ claims in the Board’s Decision.

35.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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 applicants have established such a claim and hence leave ought to be given.

Conclusion

36.  For reasons aforesaid, an extension of time is granted retrospectively for the applicants to file the Leave Application on 17 December 2019, and leave is granted to all the applicants to apply for judicial review in respect of the Board’s Decision.

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