Re Kariyawasam Nanayakkara Patabendi
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CACV 720/2026, [2026] HKCA 1567 On appeal from [2026] HKCFI 3608 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 720 OF 2026 (ON APPEAL FROM HCAL 852/2023) -----------------------------------------
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___________________ J U D G M E N T ___________________ Hon Barma JA (giving the Judgment of the Court): 1.This is an appeal against the decision of Deputy High Court Judge Michael Wong (“the Judge”) given on 24 June 2026[1] (“the Leave Decision”) refusing to grant leave for the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 23 May 2023 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 25 November 2022 rejecting the applicant’s non‑refoulement claim. 2.The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out therein[2] and summarised by the Judge at [1]-[2] of the Leave Decision, which will not be repeated. 3.After considering the documents filed by the applicant as well as his oral submissions made at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [10]-[26] of the Leave Decision. Appeal to this court 4.In a Notice of Appeal dated 3 July 2026, the applicant stated that he disagreed with the Leave Decision, as the court did not “scrutinise [his] claim properly”. He contended that the “problem” in his home country is very severe, and that he would be killed by his enemies upon refoulement. 5.In his written submissions dated 13 July 2026, the applicant contended inter alia (without elaboration or particulars) that the Judge was wrong as a matter of law for not having applied “the principle of irrationality” and “the principle of procedural unfairness”. He emphasised that he would face hardship upon refoulement. 6.We heard the appeal on 18 August 2026, at which the applicant appeared in person. At the hearing, the applicant had nothing further to add to the matters already set out in the documents filed with the court. Discussion 7.As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review. It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 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. An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 8.The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant were bare assertions unsupported by particulars or evidence. 9.In the present case, the Board found that a previous incident of political violence suffered by the applicant was isolated and did not reach the required minimum level of severity. The applicant was not affiliated to a political party nor was he active in politics, and thus a real risk of harm upon refoulement was not established on the evidence. These were findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [13]-[26]. We see no basis to interfere. 10.The applicant has accordingly failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. 11.As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
The applicant, unrepresented, appearing in person [2] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000852_2023_files/the_Board's_Decision.pdf |