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HCAL 948/2020
[2026] HKCFI 1933
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 948 OF 2020
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BETWEEN
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Warnakulasuriya Mariya Indika |
1st Applicant |
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Warnakulasooriya Bless Greyna (a minor) |
2nd Applicant |
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by Warnakulasuriya Mariya Indika, her next friend |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the applicant “Warnakulasuriya Mariya Indika” be amended to be the 1st applicant, “Warnakulasooriya Bless Greyna (a minor) by Warnakulasuriya Mariya Indika, her next friend” be added as the 2nd applicant, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decisions in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 7 May 2020 regarding Warnakulasuriya Mariya Indika” and “Torture Claims Appeal Board’s decision dated 12 April 2024 regarding Warnakulasooriya Bless Greyna”.
2. The 1st applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 7 May 2020 be dismissed.
3. The time for the 2nd applicant to apply for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 12 April 2024 be extended to 13 September 2024.
4. Leave granted to the 2nd applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 12 April 2024.
5. The 2nd applicant is directed to issue an originating summons for the intended judicial review on or before 15 April 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Observations for the applicants:
The Leave Application
1. By way of Form 86 dated and filed on 21 May 2020, the applicant “Warnakulasuriya Mariya Indika” (hereinafter referred to as “the 1st applicant”) applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 30 April 2019 without identifying the decision-maker.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 7 May 2020 (“the Board’s A1 Decision”) regarding the 1st applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 30 April 2019 (“the Director’s A1 Decision”). It seems that the date of the decision referred to in Form 86 was the date of the Director’s A1 Decision.
3. However, as the Director’s A1 Decision was superseded by the Board’s A1 Decision, it is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Moreover, as the 1st applicant annexed a copy of the Board’s A1 Decision to her supporting affidavit dated 21 May 2020, it is clear that the Leave Application should be in respect of the Board’s A1 Decision. The 1st applicant also confirmed the same at the oral hearing before this court on 5 February 2026.
4. On 31 July 2024, the 1st applicant filed an affidavit and annexed to her affidavit a copy of the Board’s decision dated 12 April 2024 (“the Board’s A2 Decision”) regarding her daughter, Warnakulasooriya Bless Greyna (a minor) (hereinafter referred to as “the 2nd applicant”). The 1st applicant clarified with this court’s staff on 9 August 2024 that the affidavit was for applying to add the 2nd applicant as an applicant in the Leave Application.
5. On 13 September 2024, Deputy High Court Judge Lung approved the 1st applicant’s application to add the 2nd applicant in the Leave Application. However, Form 86 was not amended to add the 2nd applicant as an applicant.
6. Nevertheless, with the order of Deputy High Court Judge Lung dated 13 September 2024, the Leave Application is treated as an application by both the 1st applicant and the 2nd applicant concerning the Board’s A1 Decision and the Board’s A2 Decision respectively. Both decisions can be viewed in the following hyperlinks:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000948_2020_files/1st_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000948_2020_files/2nd_Board's_Decision.pdf
7. In the Board’s A1 Decision, the Board found that the 1st applicant did not face any real risk of torture, deprivation of life, CIDTP[1] or persecution if refouled. Hence, the Board dismissed the 1st applicant’s appeal/petition and confirmed the Director’s A1 Decision, which rejected the 1st applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”).
8. The Board’s A2 Decision was regarding the 2nd applicant’s appeal/petition against the decision of the Director dated 9 July 2020 (“the Director’s A2 Decision”). The Board found that the 2nd applicant’s appeal/petition failed on all the applicable grounds under the USM, and hence the Board affirmed the Director’s A2 Decision, which rejected the 2nd applicant’s claim for non-refoulement protection.
Amendments
9. Although an order was granted for the 2nd applicant to be added in the Leave Application as an applicant, Form 86 was not amended to reflect the same. Thus, on this court’s own motion, the applicant “Warnakulasuriya Mariya Indika” is amended to be the 1st applicant in the Leave Application, the 1st applicant’s daughter is added as the 2nd applicant in the Leave Application and the 2nd applicant’s name is to be stated as “Warnakulasooriya Bless Greyna (a minor) by Warnakulasuriya Mariya Indika, her next friend”.
10. In Form 86, the 1st applicant named the Director, the Board and “Non-refoulment Claims Petition Office” as the putative respondents and did not name any putative interested party. The 1st applicant also spelt the Board’s name wrong.
11. In fact, only the Board should be the putative respondent and the Director should be the putative interested party.
12. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
13. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.
14. As aforesaid, the decisions in respect of which relief is sought in the Leave Application should be both the Board’s A1 Decision and the Board’s A2 Decision. Hence, it is so amended on this court’s own motion.
Legal representation of the 2nd applicant
15. The 2nd applicant is a minor born on 5 September 2019 in Hong Kong out of wedlock and is represented by the 1st applicant in the Leave Application.
16. The 1st applicant applied for legal aid for the 2nd applicant but her application was refused by the Director of Legal Aid on 24 November 2025.
17. At the hearing before this court on 5 February 2026, the 1st applicant confirmed that she would not engage a private lawyer to represent the 2nd applicant.
18. As the 2nd applicant was legally represented before the Director and the Board and no new evidence would be advanced in the Leave Application, this court considered that the lack of legal representation for the 2nd applicant in the Leave Application was a mere irregularity and it would not prejudice the 2nd applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application.
Late application for the 2nd applicant
19. By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the 2nd applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s A2 Decision was made.
20. However, the 1st applicant filed her said affidavit only 31 July 2024, which was treated as an application to add the 2nd applicant to the Leave Application. The application was only approved on 13 September 2024. In other words, the 2nd applicant only became an applicant on 13 September 2024, which was more than 5 months after the Board’s A2 Decision (made on 12 April 2024). The 2nd applicant was hence late for more than 2 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the 2nd applicant to make the Leave Application.
21. 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.
22. The 1st applicant did not make any application for extension of time on behalf of the 2nd applicant and provided no explanation for the delay in adding the 2nd applicant in the Leave Application. At the oral hearing before this court on 5 February 2026, the 1st applicant explained that she did not receive the court’s letter and she had changed to a new address.
23. The delay of more than 2 months is substantial, and the explanation given by the 1st applicant is not satisfactory, as she should have provided her new address to the Immigration Department when the address was changed.
24. However, as discussed below, this court considers that the 2nd applicant’s case does have merits and is arguable.
25. Having considered the above criteria, this court is prepared to extend the time for the 2nd applicant to make the Leave Application.
The applicants’ case
26. It is not necessary for this court to repeat the details of the applicants’ cases here as the same were set out in the Board’s A1 Decision and the Board’s A2 Decision, which can be viewed in the hyperlinks above.
27. In sum, the 1st applicant claimed for non-refoulement protection because if refouled to Sri Lanka, she would be harmed or killed by her husband Pradeep since she did not have money to give him and she had a baby with another man.
28. The 2nd applicant was born in Hong Kong on 5 September 2019. The 2nd applicant’s Sri Lankan father is also a non-refoulement claimant himself. The 1st applicant met him in Hong Kong.
29. The 1st applicant claimed that her husband Pradeep had threatened to kill the 2nd applicant, the father of the 2nd applicant and herself after Pradeep found out through neighbours that the 1st applicant had given birth to the 2nd applicant.
Oral hearings
30. The applicants requested for an oral hearing of the Leave Application and their cases were first heard on 11 September 2025.
31. The 2nd applicant was represented by the 1st applicant at the hearing. However, the 2nd applicant should have legal representation under Order 80, rule 2 of the Rules of High Court. After being explained of the said rule, the 1st applicant said that she would apply for legal aid for the 2nd applicant. The case was hence adjourned.
32. At the resumed hearing on 5 February 2026, the 1st applicant confirmed that the application for legal aid for the 2nd applicant was refused, and she decided not to engage any private lawyer to represent the 2nd applicant.
33. As aforesaid, this court was of the view that the 2nd applicant’s case should proceed and the 2nd applicant would not be prejudiced. The irregularity was hence waived.
34. When this court asked the applicants for the grounds of their intended judicial review, the 1st applicant only said that she and the 2nd applicant could not go back to Sri Lanka and they wanted to stay in Hong Kong longer.
Grounds for judicial review
35. 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).
36. The applicants did not advance any ground for their intended judicial review in Form 86, nor in the 1st applicant’s affidavits dated 21 May 2020, 31 July 2024 and 12 August 2024 respectively.
37. The 1st applicant only mentioned in Form 86 that she was not satisfied with the rejection of her case for her safety and the safety of her baby and she could not go back to her home country. Similarly, the 1st applicant stated in her affidavit dated 21 May 2020 that she was not satisfied with the rejection of her case since she could not go back to her hometown for the safety of her baby and herself because her husband was very angry with her having a baby with another man. She also mentioned that she had other financial problems.
Discussion
38. This court will first deal with the 2nd applicant’s Leave Application.
39. The 2nd applicant was about four years and two months old when her case was heard by the Board on 24 November 2023. She was represented by Ms Eugene Yang, Duty Lawyer of the Duty Lawyer Service, at the Board’s hearing.
40. The Board found that the 2nd applicant was stateless, she had no nationality and was not facing return to Sri Lanka at the time of the Board’s A2 Decision. The Board was of the view that under the petition scheme, the 2nd applicant could not establish a persecution risk, even if she could establish such a risk under the Refugee Convention.
41. The Board noted that Hong Kong is a party to the 1954 Convention Relating to the Status of Stateless Persons (subject to certain reservations), but the Board opined that it had no delegated authority to consider the applicability of the provisions of that Convention.
42. Further, the Board referred to YL (Eritrea) v SSHD[2] and found that since the 2nd applicant was not currently a national of Sri Lanka and therefore was neither facing imminent removal to that country, nor was likely to face such removal while she remained without nationality (a situation apparently brought about by the deliberate omissions of the 1st applicant). It followed that the 2nd applicant did not face a real risk of a breach of her BOR 2 or BOR 3 rights, or of Torture under the Immigration Ordinance in Sri Lanka, since she faced no realistic prospect of removal to Sri Lanka. The Board considered that given the 2nd applicant’s stateless position, it was not necessary for it to assess the hypothetical question of whether the 2nd applicant would face a breach of her rights upon any putative removal to Sri Lanka in future.
43. Nevertheless, the Board did go on to assess the risk of harm of the 2nd applicant in the alternative, ie if she were a national of Sri Lanka who could be returned there in practice. The Board gave detailed reasons in paragraphs 77 to 82 of the Board’s A2 Decision as to its conclusion that the 2nd applicant would not face any real risk of physical harm including harm from the 1st applicant’s husband and the risk of being raped, as put forward by the 1st applicant, if she were to return to Sri Lanka.
44. The Board also discussed in paragraphs 83 to 89 of the Board’s A2 Decision the risk of the 2nd applicant being discriminated, although the matter was not raised by either the 1st applicant or counsel for the 2nd applicant. The Board found from extensive country of origin information that there was no evidential basis to conclude that the 2nd applicant would be treated any differently from any other Sri Lankan child because of her status as an illegitimate child born out of wedlock.
45. In sum, the Board rejected the 2nd applicant’s claim for the reasons that:-
(1) the Board had no jurisdiction to consider persecution risk in relation to the 2nd applicant, since she had no nationality, or no such risk existed in any case. There being no real risk of physical violence of any kind and no real risk of other forms of harm such as discrimination, the 2nd applicant had not demonstrated a well-founded fear of persecution for one of the five refugee reasons;
(2) there was no risk to the 2nd applicant’s BOR 2 rights and BOR 3 rights being breached, since she did not face return to Sri Lanka at all. Even if she did face such return, there was simply no source of risk leading to a reasonable likelihood or real risk of harm in Sri Lanka; and
(3) for the same reasons, there was no real risk that the 2nd applicant would face torture as set out in Part VIIC of the Immigration Ordinance.
46. This court is of the view that whether the Board lacks jurisdiction to determine the 2nd applicant’s claim for non-refoulement protection when she is a stateless person is a question of law. The Board’s conclusion that it has no jurisdiction to determine the 2nd applicant’s Persecution Risk and the 2nd applicant did not face any BOR 2 Risk, BOR 3 Risk and Torture Risk, as she is a stateless person and did not face return to Sri Lanka at all, may not be well-founded in law and is arguable.
47. Moreover, the Board found that the 1st applicant was very likely to be deliberately obstructing the process of the registration of the birth of the 2nd applicant to ensure that the 2nd applicant was not so registered. The question of whether a stateless person born in Hong Kong can be removed (regardless of whether the statelessness is a deliberate action to prevent the subject to be removed from Hong Kong) is an important one which may affect the public administration’s policy in handling non-refoulement claimants in Hong Kong.
48. This court is therefore of the view that there are reasonably arguable grounds in respect of the 2nd applicant’s case, and leave should be granted to the 2nd applicant to apply for judicial review in respect of the Board’s A2 Decision concerning her own case.
49. In respect of the 1st applicant’s case, her danger from her husband Pradeep had been duly assessed but rejected by the Board. If the 1st applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
50. In assessing the appeal/petition by the 1st applicant, the Board held an oral hearing on 6 August 2019. The 1st applicant was present and was given the chance to present her case to the Board in person.
51. The Board concluded in the Board’s A1 Decision that it did not believe the 1st applicant’s story. Although the Board believed to a certain extent that Pradeep had a history of mistreat against the 1st applicant, the Board found that the 1st applicant had exaggerated the events happened to her, the power and influence of Pradeep and the danger she would face if she returned to Sri Lanka. The Board found the undisputed facts pointed to the conclusion that Pradeep was not so influential and he was afraid of the police and even the 1st applicant’s brother. The 1st applicant was safe at her parents’ home and it would be even so if she relocated to other parts in Sri Lanka.
52. Despite its findings as outlined above, the Board went on to assess the 1st applicant’s risk assuming its finding on the credibility of the 1st applicant was wrong and Pradeep was to seek to harm the 1st applicant. However, the Board still found that the 1st applicant did not face any real risk of torture, deprivation of life, CIDTP or persecution, and hence concluded that the 1st applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
53. The Board found that Pradeep was not a public officer and there was no evidence to support the 1st applicant’s assertion that he had strong political influence. The 1st applicant did not report Pradeep’s abuses to the police. There was no evidence as to whether the police in the subject district was so inefficient or corrupt, or failed to exercise due diligence in pursuing crime. On the contrary, it was the 1st applicant’s own evidence that Pradeep was investigated by the police and he tried to escape. There was also no evidence that if Pradeep was to go after the 1st applicant, he could do so with the active or passive acquiescence of the police. The ill-treatment from Pradeep was not on account of any Convention reason.
54. Further, the Board did not see any real chance that the state would be unable or unwilling to protect the 1st applicant from Pradeep. The Board also found that it would not be unreasonable or too harsh to expect the 1st applicant, being an able-bodied young woman with years of work experience both as an office assistant for a bank and a domestic helper, to relocate within Sri Lanka to avoid the threat from Pradeep.
55. Thus, the Board dismissed the 1st applicant’s appeal/petition.
56. This court finds no flaw in the Board’s finding that the 1st applicant was not at risk of any of the proscribed forms of harm from Pradeep under the USM.
57. 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 1st applicant has failed to establish such a claim in respect of her own claim and hence leave must be refused regarding her own application.
Conclusion
58. For reasons aforesaid, the Leave Application in respect of the 1st applicant’s application regarding the Board’s A1 Decision is dismissed. Extension of time is granted for the 2nd applicant to join the Leave Application on 13 September 2024, and leave is granted to the 2nd applicant to apply for judicial review in respect of the Board’s A2 Decision.
59. The 2nd applicant is directed to issue an originating summons for the intended judicial review on or before 15 April 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Dated the 1st day of April 2026
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( Teresa NG )
for Registrar, High Court
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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 his 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/Handed to the applicants/the applicants’ solicitors
on: 1 April 2026
Applicants’ ref. no:
Nil |
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Sent/Handed 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: 1 April 2026
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15899/19/5/39/S369
USM 17110
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 176/19 (formerly RBCZ 10122/19
QA T/C 234/20 (formerly RBCZ 10206/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Cruel, inhuman or degrading treatment or punishment
[2] YL (Nationality – Statelessness – Eritrea – Ethiopia) Eritrea v Secretary of State for the Home Department, CG [2003] UKIAT 0001
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