RE TALPE MAHAGODAGE JAGATH LAXMAN ROHITHA PERERA

CACV 306/2025, [2026] HKCA 5

On appeal from [2025] HKCFI 1794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 306 OF 2025

(ON APPEAL FROM HCAL 2463/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 8 May 2025[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 19 July 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 19 July 2018 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 by the Judge in the Leave Decision at [1]-[13], which will not be repeated.

3.  After considering the documents filed by the applicant and his oral submissions at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [15]-[18] of the Leave Decision.

Appeal to this court

4.  By a Notice of Appeal filed on 19 May 2025, the applicant claimed, in essence, that his supporting documents were disregarded by the Board and/or the court and that his life remained in danger.

5.  By written submissions dated 12 November 2025, the applicant further asserted that his enemies remained a threat and in gist complained that the Judge applied “an incorrect test” or misstated the standard of risk.

6.  We heard the appeal on 16 December 2025, at which the applicant appeared in person.  At the hearing, the applicant submitted that the “danger” still exists in his home country, and that it would be difficult for him to return.

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.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

9.  In the present case, the Board concluded that the applicant faced no real risk of harm if refouled back to his home country: the Leave Decision, [11]-[13].  These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge at the Leave Decision, [17].  We see no basis to interfere.

10.  The applicant has 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.