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HCAL1082/2021
[2025] HKCFI 3958
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1082 of 2021
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KMM |
Applicant |
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And |
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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 To dated 25 July 2025:
Leave to apply for Judicial Review be granted.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 29 July 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 18 June 2021 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 December 2017 (the “Notice”), refusing his application for non-refoulement protection.
Background
2. The Applicant is a Sri Lankan national, now aged 40. He came from a wealthy and influential family in Batticaloa, Sri Lanka. At the material time, Sri Lanka was in civil war with a military group known as the Liberation Tigers of Tamil Elam (“LTTE”). Later, a defector group broke away from the LTTE and formed the Tamil Makkal Viduthalai Pulikal (“TMVP”). The Applicant’s father used to support LTTE by monetary donations and providing equipment during the civil war. The Applicant was in friendly terms with the leader of the TMVP and supported the TMVP. Later, the TMVP formed alliance with the Sri Lanka government to fight against the LTTE.
3. In around October to November 2004, the Applicant was kidnapped by the LTTE and tortured for the purpose of extracting information about the leader of the TMVP. His father and sister were kidnapped and tortured by the TMVP working together with the Sri Lanka government in order to track down the Applicant. The Applicant fled Sri Lanka and came to Hong Kong in March 2005.
4. In 2012, the Applicant’s father fled to Australia and was accorded refugee status. His sister fled in January 2015 and ended up in Switzerland in October 2015. She was granted non-refoulement protection in August 2017.
The non-refoulement proceedings
5. The Applicant raised a torture claim on 1 September 2005, which was rejected by the Director and subsequently by the Board on appeal. However, the decision of the Board was quashed by the High Court on 12 December 2014 upon a judicial review. His claim was remitted to the Board for determination by a differently constituted Board. The Board fairly adjourned the appeal to enable the Applicant’s claim under BOR 2 Risk, BOR 3 Risk and Persecution Risk grounds which have become available under the Unified Screening Mechanism to be assessed. By the Notice, the Director also rejected his claims under these three grounds. His appeal against the Notice was dismissed by the Board. The Applicant now seeks leave to apply for judicial review of that Decision.
6. In gist, the Applicant claims he is at risk of harm from three separate sources, the LTTE, the TMVP and the Sri Lankan government. He advanced four grounds of review:
(1) There is a complete lack of assessment of his risk from the TMVP and the Sri Lanka government/army in the assessment of his BOR 3 Risk, Persecution Risk and feasibility of internal relocation to avoid those risks;
(2) He challenges the Board’s characterization of his feared risk as coming from “purely a personal dispute” as irrational and reached without giving adequate reasons or any reasons at all;
(3) The Board relied on adverse country of origin information which were not relied on by him or the Director and he had not been given a chance of reply; and
(4) He challenges the Board’s conclusion that he “has not been inflicted with any serious injury” as irrational.
Overall scrutiny
7. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the above grounds are reasonably arguable and some of them, at least, have reasonable prospect of success. Hence, the Court granted him leave to apply for judicial review.
Conclusion
8. For the above reasons, the Applicant’s leave application is allowed.
Dated the 29th day of August 2025
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( Seline Sze ) |
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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 29/08/2025
KMM
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 29/08/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9696/17/12/363/S207
Director of Immigration
Putative Interested Party’s ref. no.:
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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