Mohideen Bawa Mohamed Rafeek Alisa Mohamed Niyas Mohamed Nawsar Alisa Mohammed Ibrahim Mohammed Lathif Alisas Mohammed Ibrahim Lathif v. Torture Claims Appeal Board

HCAL 2062/2020

[2026] HKCFI 194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2062 OF 2020

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 Bruno Chan:

Leave to apply for judicial review be  refused.

Observations for the Applicant:

1.The Applicant is a Sri Lankan national in his mid-40s who arrived in Hong Kong on 16 October 2004 under a false identity as a visitor with permission to remain as such up to 15 November 2004 when he did not depart and instead overstayed, and was arrested by police some 1 ½ years later on 24 May 2006.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by some local gangsters for refusing to pay them distortion moneys and/or by the police over some false charges made against him by those gangsters, and after his torture claim was rejected, he then sought non-refoulement protection based on different facts. He was subsequently released on recognizance pending the determination of his claim.

2.For his torture claim the Applicant gave a false identity and alleged to have fled from Sri Lanka in fear of threats from some local gangsters for refusing to pay them extortion money to come to Hong Kong to seek protection, but after his torture claim was rejected by the Immigration Department, he raised his non-refoulement claim for protection based on his present identity which he confirmed to be true and on the following different factual background.

3.He was born in 1980 and raised in Colombo, Sri Lanka, and after leaving school he assisted in his uncle’s cell phone shop in his home district, and followed his family’s tradition in supporting the political party Sri Lanka Freedom Party (“SLFP”) and their alliances People’s Alliance (Sri Lanka) (“PA”) and United People’s Freedom Alliance (“UPFA”).

4.In 2002, he was invited by a PA member Roshan to join PA and to work for him by regularly attending their local meetings and activities in Kolonnawa. 

5.One day in June 2004 after attending a meeting at the PA’s branch office in Borella, the Applicant accompanied Roshan and another member on their way to Colombo when they were stopped and abducted at gun point by some unknown men to some remote area where they were beaten tortured for supporting PA, during which those men targeted Roshan for torture and interrogations, and eventually they killed Roshan by chopping off his head, whereupon the Applicant fainted from the sight.

6.Upon regaining consciousness the Applicant found himself on an ambulance on the way to the hospital for medical treatments, and upon discharged from the hospital he was too scared to return to his home and instead hid in a friend’s place in Chilaw before moving on to Wiruthoda, Madurankuliya of Puttalam to take shelter in his uncle’s place, and on 16 October 2004 he departed Sri Lanka for Hong Kong where he subsequently overstayed, and upon his arrest by the police some 1 ½ years later he raised his torture claim, and after it was rejected he then sought non-refoulement for protection, for which he completed a Supplementary Claim Form (“SCF”) on 25 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 20 October 2017, the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than risk of torture including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim of fear of harm from some unknown men for some political reasons that caused him to leave his country to come to Hong Kong to seek non-refoulement protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 1 ½ years later and only after his arrest by the police as well as his concession of having used a false identity and fabricated facts for his earlier rejected torture claim, that even if his account of events of being abducted by some unknown men prior to his departure from Sri Lanka were true that the level of risk of harm from those unknown men upon his return to Sri Lanka is assessed as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those unknown men to seriously harm or kill him as their target was clearly Roshan whom they had already killed and that they were willing to let the Applicant go without further harm, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Puttalam or Negombo where it would be difficult if not impossible for anyone to locate him.

9.On 30 October 2017, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended two oral hearings on 18 March 2019 and 25 May 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 23 September 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted and rejected the credibility of his claim of having been abducted by unknown men or that Roshan had been killed by those men or that he feared of being harmed or killed by those men that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 1 ½ years later and only after his arrest by the police as well as his use of a false identity and a fabricated factual background for his subsequently rejected torture claim, and concluded that the Applicant had failed to establish any real risk of any proscribed harm from anyone to him upon his return to Sri Lanka that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 15 October 2020, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he repeated his claim as before but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as relevant COI in the assessment of his claim and the current political situation in Sri Lanka, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his leave application.

Dated the 8^th day of January 2026

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