MEEGAMUWAGE AMITH ROSHAN KUMARASINGHE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 143/2020

[2025] HKCFI 2123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 143 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; and

2.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 14 January 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a “Decision Day 1 January 2020”.  He named himself as the proposed respondent and stated “No” in the section of interested party.  In his affirmation filed for this application he exhibited a “7 January Decision TCBA” [sic.].

2.  From the papers filed for this application, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 7 January 2020 (the “TCAB Decision”) which affirmed a decision dated 30 July 2019 by the Director of Immigration (the “DOI”) refusing the Applicant’s non-refoulement protection claim.  I take it that the Applicant is seeking judicial review of the TCAB Decision.

3.  I therefore amended the Form 86 on my own motion, naming the TCAB as the putative respondent and the DOI as a putative interested party.

4.  The Applicant requested for a hearing of this application and he attended the same.  When asked if he had anything to add, he confirmed that he had not.

Background

5.  The Applicant is a national of Sri Lanka. He seeks non-refoulement protection on the basis that he will be harmed or ill-treated by his family and local villagers for religious reasons and by the Sri Lanka government due his desertion of military service.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

7.  In his affirmation filed in support of this application, the Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

8.  As can be seen from the TCAB Decision, the TCAB had all available evidence placed before it, including the Applicant’s oral testimony at the hearing before the TCAB [6-10].  After careful consideration of the same together with relevant COI and applying the correct approach [11-39], the TCAB concluded that the Applicant’s allegations were not made out [40-46].

9.  The TCAB then proceeded to analyse each of the four applicable grounds under the USM, applying in each instance the correct legal principles, and concluded that none was made out [48-89]. Further, the TCAB concluded that internal relocation was in any event available to the Applicant [90-95].

10.  All in all, I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the application.

.

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