Liyana Arachchige Naveen Roshan Gunathilaka v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 447/2026, [2026] HKCA 1262

On Appeal From [2026] HKCFI 2322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 447 OF 2026

(ON APPEAL FROM HCAL NO 1423 OF 2020)

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J U D G M E N T

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Hon D’Almada Remedios J (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Michael Wong (“Judge”) on 22 April 2026 dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 30 October 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 22 March 2019 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Sri Lanka born in 1977. His claim was made on the basis that if he returned to Sri Lanka, he would be harmed or killed by the telephone shop owner in Pettah, Chaminda and their related persons (including Inspector Ekanayake), and the Sri Lankan police in general, because he was the driver for gang members who collected protection money. Details of the applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s decision: see [1] of the Form CALL-1. The Judge has set out the grounds advanced by the applicant in support of the application and his reasons for refusal of the application: see [21] – [56] of the Form CALL-1.

Appeal to this Court

3.On 30 April 2026, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were, essentially, that the Judge gave too much weight to the delay, that the Judge considered the merits of the case rather than whether it was arguable, that the Judge failed to consider if the Board was unfair to rely on the applicant’s first unrepresented statement, that the Judge erred by accepting the Board’s finding that one or both accounts had to be false, that the Judge failed to examine whether internal relocation would be unduly harsh or unsafe, that the Judge failed to properly examine whether sufficient state protection would be available, that the Judge failed to apply anxious scrutiny, and that the Judge erred in finding there was no reasonably arguable prospects of success.

4.The applicant has lodged written submissions in which he stated that the Director failed to give proper weight to state acquiescence, that the Board failed to make sufficient inquiries and investigation or engagement with the applicant’s evidence and explanations, that the Director relied on selective country of origin information to support his preconceived conclusion without consideration of contrary material, that the Board and the Director failed to adequately assess the cumulative risks of refoulement and seriousness of the situation for the applicant, and that the applicant was denied a fair opportunity to properly present his case.

5.At the hearing, the applicant had nothing further to add.

Discussion

6.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

7.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant failed on credibility. Even taking the applicant’s account at its highest, the Board found that there was no real risk that the applicant would be subjected to serious harm upon refoulement, that state protection would be available, and that internal relocation to other large cities would be a viable option and not unduly harsh for the applicant. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. Despite the applicant’s complaint about being denied of a fair opportunity to present his case, the applicant was, in fact, legally represented and it was actually the applicant who declined to testify at the hearing before the Board. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

8.Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. Contrary to the applicant’s allegations, the Judge had, in fact, extensively considered the Board’s decision at length. In his decision, the Judge decided to examine the merits despite the applicant’s substantial delay at [13], he explained why the Board was not wrong or unreasonable to find the applicant’s two accounts to be incompatible at [33] to [34], and he considered the issues of state protection and internal relocation at [46] to [47] and [50] to [54]. We are not satisfied that there is any error in the Judge’s decision.

9.The applicant’s appeal is accordingly dismissed.

The Applicant appeared in person