MOHAMED BASEER ABDUL KALK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 516/2026, [2026] HKCA 1283

On Appeal From [2026] HKCFI 2382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 516 OF 2026

(ON APPEAL FROM HCAL NO 1464 OF 2025)

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BETWEEN

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JUDGMENT

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Hon Winnie Tsui J (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 13 May 2026 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 9 June 2025 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 April 2025.

2.  The Applicant alleges that, if refouled, he will be harmed or killed by 4 people affiliated with the United National Party, namely Sunil, Gamini, Faja and Karu, due to his own affiliation with the Samagi Jana Balawegaya party. He also alleges that he is in fear of being arrested and treated badly by the police in his home district because there has been a warrant of arrest issued against him. The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing his appeal against the Director’s decision are set out in detail in the Board’s Decision, and summarised by the Judge in the Judge’s decision (see §§3, 4, 7 and 8 of the CALL-1 Form). We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§12-16 of the CALL-1 Form. In gist, the Judge held that the Applicant had failed to raise any valid ground to challenge the Board’s findings or show he had any realistic prospect of success in his intended judicial review of the Board’s Decision.

THIS APPEAL

4.  In his Notice of Appeal filed on 21 May 2026, the Applicant complains that the Judge did not consider his claim properly and repeats his claimed fear of being harmed by his enemies if refouled.

5.  The Applicant has failed to lodge written submissions in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 21 May 2026. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

6.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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. The court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

7.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. 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: Re Kartini [2019] HKCA 1022, at §13. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

8.  The Applicant has failed to raise any viable ground of appeal against the Order.

9.  The Applicant’s appeal has no merit, and is dismissed.