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HCAL 3797/2019
[2025] HKCFI 1980
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3797 of 2019
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Hollu Pathirage Janaka Chaminda Kaldera |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:
1. Form 86 be amended as follows:- the Director of Immigration be named as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 19 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 11 July 2019 (the “Board’s Decision”).
2. In the Form, the Applicant has named the Board as both the proposed respondent and the proposed interested party. As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form on the court’s own motion.
3. The Applicant had requested an oral hearing for the application. The hearing took place on 17 March 2025 and the Applicant attended in person.
Background
4. The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference.
Discussion
5. The Board’s Decision was issued on 11 July 2019. The Form was however only filed on 19 December 2019. After discounting the Court’s vacation in August 2019, there was still delay in filing the Leave Application.
6. No application for extension of time to file the Leave Application was made by the Applicant. There was no explanation for the delay in either the Form or the supporting Affirmation. At the hearing on 17 March 2025, when being asked about the delay, the Applicant explained that he was late in filing the Leave Application because he was detained in prison at the time and he was not immediately informed of the Board’s Decision. The Applicant said he immediately applied for judicial review once he had received the Board’s Decision.
7. In considering whether to extend the time for applying for leave for judicial review, the Court shall have regard to, inter alia, the following:- (a) the length of the delay; (b) the explanation of the delay; (c) the merits of the substantive application; (d) the prejudice; and (e) the question of general public importance: Re Thomas Lai [2014] 6 HKC 1, at §§43-45; AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, at §27.
8. In the present case, the Leave Application was made about 5 weeks after the expiry of the 3-month period. I do not accept that the Applicant was not duly informed of the Board’s Decision in July 2019. I note that despite what the Applicant alleged at the hearing on 19 March 2019, he did not explain the delay in his supporting Affirmation. I also note that previously the Applicant had equally ignored the Board’s direction and letter (see §§11 and 12 of the Board’s Decision). In any event, even if I accept the Applicant’s explanation, for the reasons set out below, I shall still decline to extend the time for the Leave Application.
9. As the merits of the intended judicial review is a significant factor to be considered in determining whether the Court should extend the time for judicial review, I shall now proceed to consider the merits of the Leave Application.
10. The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
11. In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affirmation, the Applicant simply said he disagrees with the Board’s Decision. He further repeated his claims that he cannot go back to his country as his life will be in danger there.
12. I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. It should be noted that the Applicant was given an opportunity to present his case and answer any questions from the Board but he chose not to attend the hearing (§11 of the Board’s Decision). After his failure to attend the hearing as directed by the Board, the Board further issued a letter to him on 7 March 2019 and notified him that the Board would proceed to determine the claims on papers. The Board further invited the Applicant to provide a written explanation together with supporting documents within 7 days as to why he failed to attend the hearing. The Applicant did not reply to the letter (§12 of the Board’s Decision). In the premises, I see no basis for the Applicant to challenge the Board’s Decision. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.
13. The Applicant also mentioned at the hearing that he has a 21-year-old son in Hong Kong and he spent half of his life in Hong Kong. These however are not relevant factors to the Leave Application.
14. Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me and the submissions made by the Applicant at the hearing.
Conclusion
15. As the Form was filed out of time and without any valid explanation for the delay, and the challenge to the Board’s Decision is not reasonably arguable, I refuse to grant an extension of time even if the Applicant makes such application. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 15th day of May 2025.
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( Allen LEE )
for Registrar, High Court |
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:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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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);
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 Applicant proposes to use at the hearing, including the affidavit in support of the application for leave
(Order 53, rule 6(5)).
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Sent to the Applicant
on 15/5/2025
Hollu Pathirage Janaka Chaminda Kaldera
Applicant’s ref. no:
Nil
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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 15/5/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13176/18/8/446/S291
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1560/18 (T7S92) (formerly RBCZ 2001431/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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