HCAL3601/2019 MAGGONAGE PRADEEP TILAKASIRI SILVA alias MAGGONAGE PRADEEP TILAKASIRI alias MAGGONAGE PRADEEP THILAKASIRI alias MAGGONAGE PRADEEP THILAKASIRI SILVA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
HCAL 3601/2019
[2026] HKCFI 1128
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3601 of 2019
BETWEEN
Maggonage Pradeep Tilakasiri Silva alias Maggonage Pradeep Tilakasiri alias Maggonage Pradeep Thilakasiri alias Maggonage Pradeep Thilakasiri Silva
Applicant
and
Torture Claims Appeal Board/
Putative
Non-refoulement Claims Petition Office
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:
consideration of documents only; or
consideration of documents and oral submissions by the Applicant in open court.
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 3 December 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 22 November 2019 (the “2019 Decision”) refusing his application for late filing of his Notice of Appeal/Petition (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 7 February 2017 (the “Further Notice”) refusing his application for non‑refoulement protection under BOR 2 Risk ground[1].
The Applicant’s claim
2. The Applicant is a Sri Lankan national, now aged 43. His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[2] for reference. In gist, he claims he will be harmed or killed, if returned to Sri Lanka, by a member of the parliament representing the United National Party because of a political dispute.
3. The Applicant arrived in Hong Kong on 11 August 2004 and overstayed since 11 September 2004. He was arrested by the police on 17 February 2009. Then he raised a torture claim by written representation dated 19 February 2009. His claim was assessed under Torture Risk[3]; BOR 3 Risk[4]; and Persecution Risk[5] grounds and rejected by the Director’s Notice of Decision dated 16 January 2015 (the “Notice”). His appeal was dismissed by the Board’s decision dated 11 August 2016 (the “2016 Decision”). The 2016 Decision in respect of his claim under those three grounds are now final.
4. By a letter dated 12 January 2017, an immigration officer invited the Applicant to submit further information, if any, relevant to his claim under BOR 2 Risk ground within 14 days. He did not respond. Then the immigration officer made a determination and issued the Further Notice refusing his claim under BOR 2 Risk ground. In the Further Notice, the Applicant was advised that if he was aggrieved by the Further Notice he may file an appeal within 14 days, i.e. on or before 22 February 2017.
5. The Applicant filed the NOA on 14 March 2017, which was out of time by about three weeks. The explanation he gave in section 5 of the NOA is that he had not received the Further Notice from the Immigration Department before the period for filing of the NOA expired. The reason was he could not receive any mails at the place where he lived as all mails addressed to him go directly to his landlord’s address. He was informed by an immigration officer when he reported for his recognizance that the Further Notice had been sent to his address. Then he checked with his landlord and found the Further Notice. He gave no particulars of the dates when he was informed by the immigration officer about the issue of the Further Notice, when he made enquiries with his landlord about the Further Notice and when he actually recovered it.
6. The Board was not satisfied that the Applicant had provided a reasonable or satisfactory explanation for the delay in submitting his NOA, nor any effective explanation covering the whole of the period of delay. It also took into account the factual basis of the Applicant’s original application for non-refoulement protection as set out in the 2016 Decision. It found there is nothing in the information originally provided by the Applicant which disclosed any special circumstances by virtue of which it would be unjust not to allow the late filing of the NOA against the BOR 2 decision. Hence, pursuant to section 37ZT(2) of the Immigration Ordinance, the Board decided as a preliminary issue without a hearing to refused his late filing of the NOA.
The legal principles applicable to judicial review
7. The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh. The primary decision-makers in a claim for non‑refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].
Grounds for judicial review
8. At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant confirmed that he had no complaint about the 2019 Decision and would leave it to the Court to scrutinize the 2019 Decision for those vitiating elements. In his supporting affirmation, he reiterated his life would be in danger, if returned to Sri Lanka. He said he was married in Hong Kong and have two daughters. None of these arguments constitutes any arguable ground of review. In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the 2019 Decision sought to be reviewed.
Overall scrutiny
9. The issue raised by this leave application is a very narrow one. There is no dispute that the Applicant was late in filing his NOA. He gave an explanation, but the Board was not satisfied that he had provided a reasonable or satisfactory explanation for the delay. The Board also found there is nothing in the information originally provided by the Applicant which disclosed any special circumstances by virtue of which it would be unjust not to allow the late filing. Both findings are findings of fact solely for the Board, which this Court may not intervene, save for errors of law, procedural unfairness or irrationality in the 2019 Decision.
10. In respect of the first finding, it was the Applicant’s claim that there is nothing he could do because his mails were directly sent to his landlord who chose not to forward them to him or inform him about the mails and he did not know when the Immigration Department would issue the Further Notice. However, his burden under section 37ZT(3) is a very onerous one. He has to show, not only by bare assertion but also by evidence in writing that he had exercised all due diligence to file the NOA within time but failed to do so due to circumstances beyond his control. It was not enough for him to say he did not receive the Further Notice within time because the mails were directly sent to his landlord’s address. He gave no particulars of the dates when he was informed by the immigration officer that the Further Notice had been sent, when he made enquiries with his landlord about the Further Notice and when he recovered it. These information were necessary to enable him to build up a case that he had exercised all due diligence to file the NOA within time but failed to do so due to circumstances beyond his control and to enable the Board to assess the length of the delay and the merits of his case for late filing.
11. It may be argued that the Board could have asked him for those particulars to enable him to perfect his application for late filing and that the Board had failed to attain the high standard of fairness by refusing his late filing without asking him for those particulars. Unlike in the processing of his non-refoulement claim in which the Board is under a duty of joint endeavour to help an applicant to establish the basis of his claim, such duty is not extended to an application for late filing. This is because it is assumed that an asylum seeker had to escape from his home country under life-threatening circumstances and may have difficulties in collating evidence in support of his claim. But an applicant for late filing is not under such comparable circumstances in the host country. He is enjoying the peace and protection of the host country. Only he knows if he has exercised all due diligence to file the NOA within time and whether his failure to do so was due to circumstances beyond his control. The Board does not. There is no reason why he should be relieved of his duty of complying with procedural time limits and the duty of proving his entitlement to extension of time to comply according to the ordinary standard of proof. In that light, it is not difficult to understand why section 37ZT(1) imposes a very onerous burden on the Applicant to give a statement of the reason for failing to file the NOA within time. Subsection (2) also mandates the Board to decide as a preliminary decision without a hearing whether to allow the late filing and requires the Board to only take into account of the statement of reasons stated in the application for late filing and the evidence relied on in support of those reasons.
12. It is understood that the Applicant did not know when the Immigration Department would issue the Further Notice. As was held by the Court of Appeal in Karamjit Singh[7] and Re Hasmi Rizwan Imran[8], it is the applicant’s obligation to keep the court or the authorities informed of his means of contact. If he does not, he has to bear the consequence which his failure brings. He must have known about such special mail arrangement when he took up the lease of his residence or, in any event, well before he lodged his non-refoulement claim. The outcome of his non-refoulement claim is particularly important to him, if he has real fears for his safety, if refouled. He should have made some arrangement with his landlord for him to be notified about his incoming mails or he should have made regular inquiries with or even visits to his landlord for that purpose. He could also have made some arrangements with the immigration officer for him to be otherwise informed of the progress of his claim. He did nothing, not to mention all due diligence.
13. The Board’s second finding is inevitable. The Applicant had failed to establish his claim under Torture Risk, BOR 3 Risk and Persecution Risk grounds. It must necessarily follow if he did not submit further information in support of a claim under BOR 2 Risk ground, the BOR 2 Risk is not engaged. The Board found there is nothing disclosed in the information originally provided by the Applicant which disclosed any special circumstances by virtue of which it would be unjust not to allow late filing of the NOA against the Further Notice. It was on the basis of these two finding of facts that the Board refused the late filing.
14. Having rigorously examined the 2019 Decision, the 2016 Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to late filing of the NOA. The Board’s understanding and application of the relevant provisions under the Immigration Ordinance is absolutely correct. The two findings of fact on which the Board’s Decision is based is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such findings were made as result of error of law or procedural unfairness or that the 2019 Decision is irrational. The Court could detect no error of law or procedural unfairness in the 2019 Decision. The 2019 Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving the requirements under section 37ZT. The 2019 Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
15. For the above reasons, the Applicant’s leave application is refused.
Dated the 26th day of February 2026
(Seline Sze)
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 26/02/2026
Maggonage Pradeep Tilakasiri Silva alias Maggonage Pradeep Tilakasiri alias Maggonage Pradeep Thilakasiri alias Maggonage Pradeep Thilakasiri Silva
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 26/02/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 850/15/1/201/S21
BOR 283/17/3/54/S10
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1234/09 (formerly RBCZ 571/09)
RBCZ 9001604/16 (formerly RBCZ 571/09)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
Form CALL-1
[1] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[2] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003601_2019_files/1st_Board's_Decision.pdf
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003601_2019_files/2nd_Board's_Decision.pdf
[3] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[5] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[6] [2018] BKCA 524 at [14(1)]
[7] [2018] HKCA 460
[8] [2018] HKCA 439 at paragraph 15