URALA GAMAGE HASITHA RUWAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1025/2020

[2025] HKCFI 3717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1025 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 is amended on the court’s own motion.

2.  No extension of time granted to the applicant to file the Form 86 out of time.

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

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 27 May 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 3 October 2019 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 17 August 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

 https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001025_2020_files/the_Board's_Decision.pdf

2.   In his Form 86, the applicant named the Board and the Director as the proposed respondents and named the Board as the interested party. As the Board should have been the proper respondent and the Director interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  The basis of his claim was that he would be harmed or killed by members of the United National Party and by members of the Buddhist community because he had changed his religious beliefs and practiced and became a Catholic.

4.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision. 

5.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 14 August 2025. Due to the suspension of the hearing because of the “Black Rain Warning”, the hearing was postponed until the next day. The applicant was detained at Castle Peak Bay Immigration Center. Upon the applicant’s request to be brought up to attend the hearing, a body order was issued to enable the applicant to attend the hearing in person.

Discussion

6.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

8.  In his Form 86, the applicant did not raise any grounds. The applicant’s supporting affirmation only contained some incoherent references to “Covid 19” quarantine in his home country.

9.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  The applicant stated that he would like to stay in Hong Kong until his problem was solved. He informed the court that his mother was presently working in Cyprus, and had applied for a visa to enable the applicant to join her there. He just needed more time.  When he was asked to state what errors the Board had allegedly made, the applicant stated that it was not right for the Board to find that the problem he faced happened long time ago. He said that he had personally suffered the pain.   

10.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board found the applicant’s evidence vague, confusing, inconsistent and generally unconvincing. The Board did not accept that the applicant’s responses provided a satisfactory explanation for the irregularities in his evidence. The Board therefore rejected the applicant’s credibility on the key aspects of his claims, which were found to be unreliable.    The Board concluded that there were no substantial grounds to believe that the applicant would face a risk of harm if he were refouled. The Board also found that internal relocation was reasonably viable.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness in the Board’s Decision. I find the Board was entitled to conclude that there was no risk of harm. The applicant had not provided any grounds to challenge the Board’s Decision either in writing or at the hearing. Pertinently, the applicant confirmed at the hearing that he was simply wanting more time for the visa to join his mother in Cyprus. I find that the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Whether to extend time for the late application

12.  Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose. The applicant was late for more than 4 months, which is not insignificant. A good explanation for the delay shall be required,

13.  The applicant explained that at the hearing before the Board, he was legally represented. After he received the Board’s Decision, it had taken him some time to try to find a lawyer to assist him. At the end, he had to prepare the case himself with his limited knowledge. Hence, the delay.

14.  I do not accept that the time spent in engaging a lawyer was a good reason for the delay. Having taken into account the lack of the prospects of success, the court declines to grant him any extension of time.

Orders

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

16.  There shall be no extension of time granted to the applicant to file the Form 86 out of time.

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