RE MOHIDEEN BAWA MOHAMED RAFEEK alias MOHAMED NIYAS MOHAMED NAWSAR alias MOHAMMED IBRAHIM MOHAMMED LATHIF alias MOHAMMED IBRAHIM LATHIF

CACV 31/2026, [2026] HKCA 483

On Appeal From [2026] HKCFI 194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 31 OF 2026

(ON APPEAL FROM HCAL NO 2062 OF 2020)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 8 January 2026[1] refusing his application for leave to apply for judicial review against the decision dated 23 September 2020 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed his appeal against the decision dated 20 October 2017 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2] , BOR 3 risk[3] , persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of Sri Lanka. He came to Hong Kong in October 2004 and overstayed his visa. He was arrested in May 2006, and in that month made a non-refoulement claim on the basis of the torture risk ground, saying that if he returned to Sri Lanka, he would be harmed or killed by local gangsters for refusing to pay them extortion money (“the CAT Claim”). This was rejected by the Director and the Board in 2012. In November 2013, the applicant made a second non-refoulement claim. In this claim, he acknowledged that the ground for the first claim was false, and instead advanced the basis that he feared reprisal as he (and a Mr M) witnessed a beheading of a Mr R. The applicant had been working for the People’s Alliance (“PA”) under the direction of Mr R, who had connections to a politician Mr BLP; Mr R had also introduced him to Mr M and Mr S, also members of the PA, and they had become friends. The applicant was a supporter of the Sri Lankan Freedom Party (“SLFP”) and their alliances, including the PA and the United People’s Freedom Alliance (“UPFA”). He said he also feared harm from supporters of the United National Party because of his work for Mr BLP and his support of the SLFP, PA and UPFA.  Details of the applicant’s background, the basis of his claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal have all been set out in the Board’s decision[6] : see [10] of the Form CALL-1.  Essentially, the Board rejected the factual claims made by the applicant.

3.  After considering the documents filed by the applicant in support of his application for leave to apply for judicial review, in which the applicant simply repeated the basis of his claim in his affirmation without specifying any ground for judicial review, the Judge dismissed the application for reasons stated at [11]-[16] of the Form CALL-1. We will not repeat them here.

Appeal to this Court

4.  On 14 January 2026, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were that the Judge’s decision was incorrect and unfair, and that he would be killed by his enemies if he returned to his home country.

5.  The applicant has lodged written submissions in which he stated (inter alia) that (1) the Judge’s decision was unreasonable, (2) the Judge erred in not applying the principle of irrationality to the Board’s decision and the Director’s decisions, (3) the Judge erred in not applying the principle of procedural unfairness to the Board’s decision as the Board was required to give reasons for its decision, (4) the problems in his home country were severe but the Judge did not apply greater care and disappointed the applicant, (5) the Judge did not accept the applicant’s claims, (6) the Board failed to give the applicant a sufficient chance to arrange relevant evidence, (7) the applicant would face hardship if he were to return to his home country, and he would be killed by his enemies; he was tortured brutally when in Sri Lanka, (8) the police would not help him as he was not a political leader, and (9) the Board relied on news relating to Sri Lanka which was not officially recognised or was hearsay. He also annexed an English translation of a police report allegedly made by the applicant’s sister on 8 July 2025 (“the 2025 Statement”), said to show that the applicant is still being pursued by his enemies in Sri Lanka.

6.  At the hearing, the applicant stated that in 2025, his enemies thought that he had returned to Sri Lanka and they looked for him and made death threats. He relied on the 2005 Statement to substantiate this. He also referred to two earlier reports made by his sisters to the Sri Lankan police. The earliest was in 2007, in which the applicant’s older sister said that after the applicant gave evidence to the police about the murder of his friend who worked for Mr BLP, the applicant received many death threats by phone; another of the applicant’s friends was killed in 2005; and a group of people went to her family home looking for the applicant in September 2007. The second was in 2012, in which the applicant’s other sister had said that the family from time to time received threatening phone calls about the applicant, and she had also referred to the 2007 incident.

7.  The applicant further explained that he came to Hong Kong in 2004 and was scared and in a poor mental state at the time. He took another identity so that he would not be identified when he came to Hong Kong. His friend was killed a year later, and then by 2010 his other friend was also missing. He was less scared after 2016, and he put his real name in his daughter’s birth certificate. He told his true story because of his daughter. Before then he had been scared to do that.

Discussion

8.  In assessing the merits of the appeal, we 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.

9.  In the present case, the Board found (inter alia) that (1) as the applicant admitted, the factual claims in the CAT Claim were fabricated, and the applicant’s explanations as to why he did so were not convincing, (2) the applicant did not in fact do any work for Mr BLP, the SLFP or the PA, (3) the applicant was never as involved in Sri Lankan politics as he claimed, (4) the applicant made an exaggerated claim about the death of a friend during the 2015 election, (5) the country of origin information indicated that political environment in Sri Lanka had vastly changed from the time when the applicant first left in 2004, with the level of political violence between political opponents having been reduced to close to nil, (6) the applicant therefore did not face any real risk of proscribed harm under the grounds in his petition by reason of his political opinions, (7) the applicant’s claim that he was abducted, that he witnessed the beheading of Mr R, and that he made a report to the police about the beheading should be rejected, (8) the applicant’s claim that he moved to another location in Sri Lanka to avoid being found, and that people followed him and contacted his family members or neighbours, should also be rejected, (9) the applicant’s claim to have left Sri Lanka in fear of harm should be rejected, and similarly for his claim that Mr S and Mr M left Sri Lanka because of fear of harm, (10) there were no threats to the applicant’s family as alleged, and (11) there was no real risk of proscribed harm to the applicant from the culprits or the authorities arising from the purported beheading.

10.  Turning to the applicant’s arguments advanced in this appeal, we are of the view that they are unarguable.

(1)     In making its findings, the Board analysed the evidence in detail, and gave its reasons. The applicant’s arguments fail to engage with the Board’s reasons. No viable grounds have been put forward to challenge the findings or the reasoning of the Board. 

(2)     Given that the Board rejected the factual basis of his claim, the assertion that the applicant would face hardship or the risk of death upon return to Sri Lanka, or would not be able to seek assistance from police, cannot stand.

(3)     Contrary to the applicant’s complaint, the Board did in fact give detailed reasons for its decision.

(4)     The complaint that the Board did not give the applicant sufficient time to provide evidence is incorrect. The Board gave the applicant an additional month after the hearing to provide the evidence which the applicant had volunteered to provide, namely, the report which he gave to the police about the alleged beheading. Even now, there is no suggestion that the applicant has obtained this document.

(5)     The complaints that the Director’s or the Board’s decisions are irrational, that the proceedings before the Board were procedurally unfair, and that the Board erred in the use of country of origin information are general assertions unsupported by particulars.

(6)     Likewise, the complaints that the Judge’s decision was unreasonable, that he failed to apply the principle of irrationality or procedural unfairness, and that he failed to accept the applicant’s claims are general assertions unsupported by particulars.

11.  The applicant has therefore failed to show any reasonably arguable public law error in relation to the Board’s decision. 

12.  Equally, the applicant has not been able to demonstrate with particulars any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are satisfied that the Judge gave proper and adequate reasons for his conclusion that the intended judicial review has no prospect of success.    

13.  As for the 2025 Statement, we decline to admit it as new evidence in this appeal. It is trite that if it is to be admitted, the three conditions in Ladd v Marshall [1954] 1 WLR 1489 need to be satisfied, namely, that (1) the new evidence could not have been obtained at the hearing below with reasonable diligence, (2) the new evidence would significantly influence the outcome of the case if believed, and (3) the new evidence must be apparently credible, though not necessarily incontrovertible. Given that the Board rejected the factual basis of the applicant’s claim, and that the applicant fails to show, whether by reference to the 2025 Statement or otherwise, that there are arguable grounds to challenge the Board’s findings, the Statement would not influence the outcome of the appeal.

14.  The applicant’s appeal is accordingly dismissed.

[1] [2026] HKCFI 194.

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] https://legalref.judiciary.hk/doc/ judg/html/vetted/other/en/ 2020/HCAL002062_2020_files/ the_Board's_Decision.pdf