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BATHAGE WATHTHE GEDARA LAXMI PIYARATHNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2025] HKCFI 1490-EN-2025-05-15

BATHAGE WATHTHE GEDARA LAXMI PIYARATHNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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HCAL 2030/2024

[2025] HKCFI 1490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2030 OF 2024

____________________

BETWEEN
	Bathage Waththe Gedara Laxmi Piyarathna	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

____________________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

15 May 2025

____________________

DECISION

____________________

The application

1. The applicant is an illegal immigrant by staying in Hong Kong without permission and she lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected her application and she appealed to the Torture Claims Appeal Board (“the Board”). Having considered her evidence, the Board, by its Decision (“the Board’s Decision”), rejected her appeal and affirmed the Director’s Decision.

2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3. By Judgment dated 28 January 2025 (“the Judgment”), the Court dismissed her application for the reason that there is no realistic prospect of success in her intended application.

4. The Judgment was sent to the applicant on 28 January 2025 at her last known address without being returned from the Post Office. She is deemed to receive the Court’s decision.

5. The time for filing the notice of appeal expired on 4 February 2025[1].

6. By summons filed on 19 March 2025, the applicant applied for appeal against the Court’s decision out of time. She is late for 43 days.

7. In her affirmation support of his application, the applicant said that she did not receive the court’s letter with the Judgment and she did not have legal advice.

Discussion

8. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[2].

9. The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of her case.

10. In Re Adumekwe Rowland Ejike[2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif[2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard[2019] HKCA 168; and ReIrshad Muhammad[2018] HKCA 864 at [16].”

11. The applicant claimed that if refouled, she would be harmed or killed by her husband because she had mortgaged his property in Sir Lanka for her expenses for coming to Hong Kong to work as a domestic helper.

12. The Director rejected her claim because it was not substantiated. She appealed to the Board.

13. Having considered the evidence, the Board dismissed her appeal for the reason that her evidence was unreliable and did not accept it.

14. Those reasons under paragraph 7 are not valid for her delay.

15. There is no valid reason from the applicant to challenge the Court’s decision.

16. In the circumstances, I refuse to extend time for her appeal. Accordingly, I dismiss her application.

	(K.W. Lung)
	Deputy High Court Judge

The applicant was unrepresented.

[1] The public holidays are included in the 14-day period as per Order 2(5) of the Rules of the High Court

2. Reckoning periods of time (O. 3, r. 2)
(5) Where, apart from this paragraph, the period in question, being a period of 7 days or less, would include a specified day, that day shall be excluded.
(35 of 1998 s. 5; 18 of 2016 s. 5)

[2]Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration[2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:

“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”

HCAL 2030/2024

[2025] HKCFI 200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2030 OF 2024

_____________

BETWEEN

	Bathage Waththe Gedara Laxmi Piyarathna	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Judgment:

28 January 2025

_______________

J U D G M E N T

_______________

THE APPLICATION

1. The applicant applies for leave to apply for judicial review of the Decision dated 19 May 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2. The applicant did not request a hearing. I shall deal with her application on the papers.

The applicant

3. The applicant, aged 49, is a national of Sri Lanka. She came to Hong Kong as a domestic helper on 30 April 2021. Her employment contract terminated on 6 July 2021 and she overstayed since 21 July 2021. She lodged her non-refoulement claim by way of written signification dated 27 July 2022 on the basis that, if refouled, she would be harmed or killed by her husband because she had mortgaged his property in Sir Lanka for her expenses for coming to Hong Kong as a domestic helper.

4. According to the applicant, she was subjected to domestic violence by her husband shortly after marriage in 1993. On one occasion, he had injured her by cutting her eyes with broken pieces of glass and she had to be admitted to hospital for 11 days. She had reported to police, but was advised not to fight with her husband by the police. She and her husband were separated in 2015. Her husband left the house and she was unable to have contact with him. He had left a house as residence for the children. She mortgaged the house for 450,000 rupees for the expenses for her to come to Hong Kong to work as a domestic helper. Her husband was furious when he had knowledge of this and threatened to kill her. She considered that police could not help her and internal relocation was not viable as her husband would be able to locate her.

5. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 12 October 2022 (“the Director’s Decision”).

The Director’s Decision

6. The Director considered the applicant’s claim in relation to the following risks:

(a) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);
(c) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and
(d) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

7. By way of the Director’s Decision, the Director dismissed the applicant’s claim on the applicable risks for the reasons that (i) there is no evidence that her claimed risk of harm from her husband is real or imminent [14]–[17]; (ii) state protection will be available to her [18]-[22]; and internal relocation is viable [23]-[24].

The Board’s Decision

8. The applicant appealed the Director’s Decision to the Board. On 20 April 2023, the Board conducted a hearing. The applicant has given oral evidence before the Board.

9. The Board, having considered the evidence, found:

“30. The Appellant’s evidence at the hearing about her claims was evasive and inconsistent. Her claims about the present ownership of the house changed several times, both prior to and during the hearing. … She has given different evidence as to how she was able to mortgage the house, …
37. For the reasons explained above, I regard the Appellant’s core claims as lacking in credibility. …
39. I find therefore that the Appellant has not established that there are ‘substantial grounds’ which support the conclusion that she will face a real risk of ill-treatment as claimed if she returned to Sri Lanka. …”

10. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

11. The applicant has filed Form 86 dated 6 November 2024 for leave to apply for judicial review of the Board’s Decision.

12. In the affirmation in support of her application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board.”

16. The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Court has no reason to interfere with it.

17. The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

	(K.W. Lung)
	Deputy High Court Judge

The applicant was unrepresented.