WIJEMUNI ROSHAN SANJEEWA GUNARATHNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 50 /2025, [2025] HKCA 1045

On appeal from [2024] HKCFI 2458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 50 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 106 OF 2024)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 22 May 2025 ([2025] HKCA 463).  The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 4 October 2024 dismissing the application for leave to seek judicial review against the decisions of the Director of Immigration (“Director”) and Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged his written submissions on 1 September 2025.  Having considered the written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

3.  The applicant stated the following grounds of appeal in his Notice of Motion:

(1)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director was required to give reason justifying the decision.

(2)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision of the Director;

(3)  There is error of law in the decision.  The decision maker just relied on the Country of Origin information (“COI”) which favours the rejection of the applicant’s claim; 

(4)  Actual situation is different from the COI.  The officer and the court ignored the evidence of violence towards minorities;

(5)  His life is in danger in his country.

4.  In his written submissions, he put forward further contentions which may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  The adjudicator acted in a procedurally unfair manner without properly assessing the applicant’s credibility.

Analysis and disposition

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  The applicant’s grounds and submissions in the present application were not raised in the leave application before the Court of First Instance or in the previous application before the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

7.  In any event, these grounds and submissions are just bare assertions which are not supported by particulars or evidence.  The applicant failed to identify any particular mistakes in our judgment.  He also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

8.  Therefore, we dismiss the Notice of Motion filed on 4 June 2025.