|
BETWEEN
|
| |
Ranasinghe Mudiyanselage Sriyani |
1st Applicant |
| |
Panagoda Liyanage Danith Perera |
2nd Applicant |
| |
and |
|
| |
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
| |
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 Levy:
1. The Form 86 be amended on the court’s own motion.
2. The 1st applicant’s application for leave to apply for judicial review be dismissed.
3. Leave is granted to the 2nd applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
Observations for the Applicant:
Introduction
1. By A “notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 26 May 2020, the applicants 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 12 May 2020 (“Board’s Decision”) dismissing the appeal by the 1st and 2nd applicants against the decision of the Director of Immigration (“Director”) dated 23 February 2017 (“Director’s Decision”) rejecting their non-refoulement claim on the ground of Article 2 of the Hong Kong Bill of Rights Ordinance (commonly referred as to the “BOR 2” risk). The applicants’ non-refoulement claim under the other 3 grounds of risk of torture, BOR 3 risk under Article 3 of s.8 of the Bills of Rights Ordinance and the persecution risk[1] had earlier been rejected by the Director on 29 January 2016 and their appeal to the Board was also dismissed on 30 September 2016. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001009_2020_files/the_Board's_Decision.pdf
2. In the Form 86, the applicants named the “Petition team (Security Bureau) test my case U.S.M. cases and gave the decision 12.05.2020” as the proposed respondent and the Board as the interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 shall be amended accordingly.
3. The 1st applicant is the mother of the 2nd applicant, a son born on 28 December 2014 in Hong Kong from the 1st applicant’s relationship with a fellow asylum-seeker. An application for judicial review by a child claimant should only proceed in accordance with the regime under to O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) : see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971at [57]. The court therefore sent a letter on 16 May 2025 to the 1st applicant, reminding her to approach the Legal Aid Department or engage a private lawyer to represent the 2nd applicant. However, the application for legal aid was not successful.
4. At the request of the applicants for an oral hearing, the court scheduled a hearing on 18 December 2025, which was attended by both applicants in person. Despite the non-compliance with the requirement stated in the preceding paragraph, this court would treat the non-compliance with the rule as a mere irregularity, and proceeded with the hearing: see Fabio (supra).
5. The basis of their claim was that, if refouled to Sri Lanka, both applicants would be harmed or killed by the 1st applicant’s husband. 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.
Discussion
6. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] 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[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 provided no grounds. In the supporting affirmation filed by the 1st applicant, it was averred that there was still problem at home and her life was uncertain.
8. At the hearing, this court asked the 1st applicant whether she had any grounds she wished to submit in support of the Leave Application in respect of herself. Apart from confirming that she was aware that there was an earlier decision of the Board, and that she was only challenging the Board’s Decision in the Leave Application, the 1st applicant only stated that she needed more time to handle the 2nd applicant’s education in Hong Kong.
9. As for the 2nd applicant, the 1st applicant submitted on his behalf that the 2nd applicant could not return to Sri Lanka as it would disrupt his education. Furthermore, the 2nd applicant could only speak English and spoke very little Sinhalese language.
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.[4] In the present case, in the Board Decision, the Board referred to its earlier rejection of the applicants’ late appeal against the dismissal of the applicants’ non-refoulement claim on the 3 grounds referred to in [1] above. The Board therefore held an oral hearing for the purpose of the consideration of the applicants’ BOR 2 risk. The Board assessed the appeal by the 2nd applicant on the basis that the latter’s claim relied on the same facts as those asserted by the 1st applicant. In its credibility findings, the Board accepted that the 1st applicant was subjected to domestic violence and abuse by her husband while they lived together. The Board found according to the applicant’s own evidence she had in fact lost contact with her husband since May 2019 when her husband demanded her to leave home. As to the 1st applicant’s evidence regarding what allegedly happened after May 2009, the Board found that it was hearsay and the Board attached no weight to it. The Board therefore concluded that the 1st applicant would not face any form of proscribed harm if refouled. The Board therefore also determined the 2nd applicant’s appeal with reference to the outcome of the 1st applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.
Regarding the 1st applicant
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 and observed a high standard of fairness. I am satisfied that the Board was entitled to reach the conclusion that the 1st applicant had not faced and would unlikely face risk of harm after having rejected the applicant’s post May 2009 evidence as hearsay. The 1st applicant has not advanced any grounds, whether written or oral, in support of the Leave Application. The 1st applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The 1st 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.
Regarding the 2nd applicant
12. At the time of the hearing before the Board, the 2nd applicant was about 6 years old and was not legally represented. The Board did not separately consider the relevant BOR 2 risk the 2nd applicant would face if he were refouled. The following general propositions apply to the determination of a minor's non-refoulement claim by the decision-maker: Re Jasvir Singh[5], following Fabio Arlyn Timogan (supra.).
“[30] First. …(1) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;
(2) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children's claims could be dismissed without further consideration of their personal situations;
(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.
[31] Second, when dealing with a non-represented minor's judicial review leave application seeking to challenge the Board's rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor's own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case‑by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].
[32]. If the court finds that it is reasonably arguable that the Board had not considered the minor's non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor's claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials , with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor's non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].
[33]. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor's claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non‑refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor's intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”
13. The 2nd applicant was born in Hong Kong as a result of the 1st applicant’s relationship with another man. The Board had not assessed the 2nd applicant’s specific circumstances that his father was not the 1st applicant’s husband and that the problems and the risk that he might encounter in respect of an illegitimate child if refouled. As emphasized by the Court of Appeal, even if a minor’s claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. In the circumstances, it is reasonably arguable that the Board’s dismissal of the appeal of the 2nd applicant without separate and further consideration of his personal situations is procedurally unfair as it has failed to assess his claim in a manner consistent with the propositions propounded in Re Jasvir Singh.
14. In the premises, and for all the given reasons, I am of the view that the Leave Application of the 2nd applicant is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Conclusion
15. The Form 86 be amended on the court’s own motion.
16. The 1st applicant’s application for leave to apply for judicial review be dismissed.
17. I grant leave to the 2nd applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
18. Since the 2nd applicant is a minor, he should be legally represented at the judicial review hearing. Hence, I direct my clerk to send a copy of this decision to the Official Solicitor as well as to the Director of Legal Aid for their necessary action.
Orders
19. The Form 86 be amended on the court’s own motion.
20. The 1st applicant’s application for leave to apply for judicial review be dismissed.
21. Leave is granted to the 2nd applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.
Dated the 12th day of January 2026
| |
( Alfred CHAN )
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:
|
|
|
|
|
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)).
|
|
Sent to the Applicant on 12/1/2026
Ranasinghe Mudiyanselage Sriyani
Panagoda Liyanage Danith Perera
Applicant’s ref. no:
Nil. |
|
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 12/1/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
BOR 263/17/3/34/S8，
BOR 264/17/3/35/S9，
USM 3835/16/6/25/S81，
USM 3836/16/6/26/S82
Director of Immigration
Putative Interested Party’s ref.
RBCZ 9000420/16 (mother) [T6S5], RBCZ 9000421/16 (minor) (formerly RBCZ 1783/14 & 11545/15), QA T/C 1702/15 (mother) & QA T/C 1703/15 (minor) (formerly RBCZ 1783/14 & 11545/15) [T6S5]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1