Mohamed Risme Rasheed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 876/2022

[2026] HKCFI 5805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 876 of 2022

BETWEEN

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 of 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 Applicants’ application by Form 86 filed on 2 September 2022 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 5 August 2022 (the “Third Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 July 2015 and 2 December 2016 refusing his application for non‑refoulement protection.

The Applicant’s claim

2.The Applicant is a Sri Lankan national, now aged 49. He arrived in Hong Kong on 9 August 2005 and overstayed since 9 September 2005. He was arrested for remaining in Hong Kong illegally and referred to the Immigration Department. On 5 August 2007, he lodged a claim for protection under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”). His Torture Claim was rejected by the Director on 19 September 2013. His appeal was dismissed by the Board on 14 March 2014 (the “First Decision”). The Board’s First Decision on his Torture Claim is now final.

3.On 3 March 2015, he raised a non-refoulement claim under the Unified Screening Mechanism (the “USM”). His claim was assessed by the Director under all applicable grounds under the USM other than Torture Risk ground, ie BOR 2 Risk, BOR 3 Risk[1] and Persecution Risk[2]  grounds (the “previous claim”). It was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s decision dated 22 February 2022 (the “Second Decision”). He successfully obtained leave from the Court of First Instance to apply for judicial review of the Second Decision. That decision was quashed. His appeal was re-heard before a differently constituted Board and dismissed by the Board’s Third Decision. He now applies for leave to apply for judicial review of the Board’s Third Decision.

The Applicant’s case

4.The Applicant’s 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[3] for reference. He claims, if returned to Sri Lanka, he will be harmed or killed by the Sri Lankan army for being a Muslim suspected of having been involved in terrorist activities with the Liberation Tigers of Tamil Eelam (“LTTE”) and by Buddhist nationalists in their violence and discrimination against Muslims in Sri Lanka.

5.The gist of his case is that in 2004, he became acquainted with four unknown Tamil speaking men. He showed them around Colombo including the airport, harbour, wharf, banks, police headquarters, army headquarters, army camps and storage areas. On their invitation, he travelled to their home town in Kilinochi. He was taken to a campsite where he saw a lot of guns, pistols, materials for making weapons and people in LTTE uniform.

6.One day in July 2004, the four men visited him and stayed in his home for half day. When they left, they told him that they would visit him again every two months. He was worried for his safety. If the four men were members of the LTTE, the army would suspect he had connection with the LTTE and harm or kill him. Thus, a few days later, he moved to work in Kandy and lived in his friend’s home. He returned to his home in Colombo in around October 2004. He was told by his parents that the four men had not visited him while he was in Kandy. He also never saw the four men again.

7.In July 2005, the police and army came to the district in which the Applicant was living and started making enquiries from his neighbours about his connection with the LTTE. The Applicant was frightened. Thus, he left Sri Lanka in July 2005. He went to Mainland China and then came to Hong Kong. He claimed that his friend bribed two Sri Lankan Muslim immigration officers at the airport to facilitate his passage through the immigration checkpoint.

8.At the hearing, he claimed that he came to know about the tension between Buddhists and Muslims were on the rise through the media, newspaper and family members.

The Board’s finding

9.The Applicant testified before the Board. The Board considered his claim that he was being hunted by the government for alleged association with the LTTE is made up of bare allegations and hearsay and contrary to his own evidence that the police and army had never approached him for enquiries. The Board found his evidence suspicious. Nevertheless, it did not make any finding that he was not credible. Despite its adverse observation, seemingly the Board assessed his claim on the factual case as the Applicant asserted by testing it against the COI.

10.The Board researched extensively into country of origin information (“COI”) of Sri Lanka, in particular about the police professionalism, treatment of Muslims, the LTTE, human rights practice, freedom of religion and belief, the 2019 Easter bombing by Islamic terrorists which brought about an intensification of discrimination, hostility and violence against Muslim communities: see pages 16 to 26 of the Decision. It noted corruptions in the government, police and security forces, their collusion with mobs and failure to prevent or stop violence against Muslims, their lack of response to Buddhist nationalists’ treatment of Muslims and that perpetrators were rarely if ever brought before the law.  

11.On the other hand, the COI indicated that Sri Lanka has an effective criminal justice system and an independent judiciary. The accused is entitled to public and fair trial. The Board noted that the Sri Lankan government has taken steps to improve the general standards of the law enforcement agencies, eliminate risk to person allegedly associated with the LTTE, provide avenues for seeking justice and relieve the tension between Buddhists and the Muslims. The government has received thousands of returnees including previous LTTE cadres back to Sri Lanka without torturing or persecuting them. They would also be provided rehabilitation on request. In general, LTTE cadres, as such, are of no interest to the government unless there was a pending criminal case against them.

12.The COI indicated improvements in human rights situation and protection of Muslims in Sri Lanka. Sri Lanka maintained a Committee on the Prevention of Torture to visit sites of allegations of torture, examine evidence and take preventive measures on allegations of torture. The Human Rights Commission of Sri Lanka has jurisdiction to investigate human rights violations. It generally operates independently of and without interference from the government. There are more avenues for complaint against police and judicial misconduct. According to the Commission, there is routine police action against findings of torture with some officers being prosecuted and punished with sentences of up to 10 years’ imprisonment. The current government is less tolerant towards Sinhala Buddhist extremism. Police officers and Buddhist monks are arrested for anti-Muslim violence. The Australian Department of Foreign Affairs and Trade reported a decrease in risk of torture perpetrated by military, intelligence or police in 2019 when such torture was no longer state-sponsored. The Sri Lankan judicial system allows victims of harm or mistreatment to seek protection and redress from the state. Despite the intensification of discrimination, hostility and violence against Muslim communities caused by the Easter bombing, mob violence against Muslims actually decreased.

13.The Board considered the Sri Lanka government is a government striving to deal with problems and is not indifferent or irresponsive to the unsatisfactory social condition. The government could not be said to be acquiescing in impermissible acts by its officers.

14.In respect of Persecution Risk ground, the Board accepted that the threat of harm from Buddhist nationalist group as a result of the Applicant being a Muslim is persecution on account of a reason under the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Convention reasons”). However, on the Applicant’s evidence, he never encountered any actual physical harm or threat of harm from the Buddhist nationalist group. On the basis of the COI, reasonable state protection is available and there was no ground based on well-founded fear for refusing it. Hence, the Board found the Applicant had failed to establish that he will be subjected to Persecution Risk for a Convention reason, if he is refouled to Sri Lanka.

15.The Applicant never suffered any physical injury and had not submitted any documentary evidence in relation to mental injury. Since adequate state protection is available, the Board found the Applicant had also failed to show he would face genuine and substantial risk of being subjected to ill-treatment on his return to Sri Lanka. His claim under BOR 3 Risk ground therefore failed.

16.As there is no evidence to show that a sentence of death will be imposed on the Applicant on his return to Sri Lanka, the Board found his claim under BOR 2 Risk ground also failed.

Legal principles applicable to judicial review

17.The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4].

Grounds for judicial review

18.At the hearing, after the legal principles applicable to judicial review had been explained to him, the Applicant advanced two grounds. First, he said he had difficulties in obtaining documents from Sri Lanka in support of his claim. When asked what documents he was talking about, he said he could not remember because it was a long time ago but his problem still exists. His claim was assessed on the basis of the factual case as he asserted. On his own evidence, he had never been confronted by the police or the Sri Lankan army or Buddhist nationalists or suffered any physical injuries from them. He never claimed he suffered any mental injuries. The police did not look for him while he was at home. He had presented his case as fully as he had wished. Everything that he said were accepted. His case put at the highest is that he claimed the army was looking for him and that his friend had told him that the police was holding his picture and asking his neighbours for his whereabouts. No documentary evidence was required to support the case he presented. No documents could have improved his case. This Court could not accept his assertion that he could not remember what documents he had in mind to obtain because it was a long time ago. If documents which could support his case truly exist and he genuinely had those documents in mind, he must know what they were and how they could have supported his case. This ground is just a bare assertion. It raised no issue of error of law, procedural unfairness or irrationality in the Decision.

19.Second, he said he was continuously being threatened, he became angry and his friends disappeared. That was why he had to come to Hong Kong. With the present situation in Sri Lanka he could not go back. This is not the case he presented to the Board. He never claimed he had been threatened or continuously threatened by anybody. He had never encountered any police or army personnel or Buddhist nationalists or received any threats from them. These assertions were never advanced before the Board. Obviously, these are recent concoctions. This ground raised no issue of error of law, procedural unfairness or irrationality in the Decision.

20.In the absence of any particularized grounds of application, the Court in a judicial review could only focus on error of law, procedural unfairness or irrationality in its overall scrutiny of the Board’s Decision.

Overall scrutiny

21.Having rigorously examined the 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 non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness. The Board assessed the Applicant’s claim on the basis of the case as he asserted. It made some further finding of facts based on his evidence and the COI. It found on the basis of the COI, that adequate state protection is available in Sri Lanka. Then, applying the law applicable to non-refoulement protection to the Applicant’s case and the further finding of fact, it found the Applicant had failed to establish the factual basis to support his claim to protection under any of the remaining three applicable grounds under the USM. These are mixed finding of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

22.For the above reasons, the Applicant’s leave application is refused.

Dated the 20^th day of October 2026

Form CALL-1