WARNAKULASOORIYA JUDE GAYAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 306/2026, [2026] HKCA 1033

On Appeal From [2026] HKCFI 1428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 306 OF 2026

(ON APPEAL FROM HCAL NO. 1315 OF 2020)

_________________

_________________

_________________

J U D G M E N T

_________________

Hon Eugene Fung J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-refoulement Claims) YW Hew (“the Judge”) dated 13 March 2026 ([2026] HKCFI 1428) (“the Leave Decision”) dismissing his application for leave to apply for judicial review (“the Leave Application”) against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 12 June 2020 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration dated 28 March 2019, refusing his non‑refoulement claim.

2.  The applicant is a national of Sri Lanka. The basis of his non‑refoulement claim is, if refouled, he would be harmed or killed by a person called Krishnan and/or his family from the United National Party. His background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision: see [4] of the Leave Decision. The Judge has set out his reasons for refusing the Leave Application at [8] ‑ [15] of the Leave Decision. We will not repeat the details herein.

3.  By the Notice of Appeal filed on 25 March 2026, the applicant advanced 7 grounds of appeal, briefly summarised as follows (respectively referred to as “Ground 1” to “Ground 7”):

(1)  The Judge erred in applying an overly stringent test at the leave stage and conducted a merits assessment instead of examining whether the proposed grounds were reasonably arguable with a realistic prospect of success, effectively determining the substantive judicial review at the leave stage.

(2)  The Judge failed to apply proper anxious scrutiny and instead deferred to the findings of the Board without adequately examining whether there were arguable errors of law, irrationality, or procedural fairness.

(3)  Having accepted that the Board appeared to have taken too narrow a view of BOR 2, the Judge wrongly concluded that this would not have made a difference.

(4)  The Judge failed to properly consider whether the Board’s findings on risk of harm, state protection, and internal relocation were arguably irrational or inadequately reasoned.

(5)  The Judge placed undue weight on the alleged deficiencies in Form 86 and failed to consider the substance of the applicant’s complaints, particularly when he was self-represented.

(6)  The Judge failed to give adequate reasons for concluding that the purposed grounds were not reasonably arguable.

(7)  The Judge erred in treating the assessment of credibility, risk of harm and state protection as matters solely within the province of Board without properly considering whether the Board had misdirected itself in law, and failed to take into account relevant evidence, taken into account irrelevant matters, and reached findings not supported by the evidence.

4.  In support of his appeal, the applicant also lodged written submissions on 27 April 2026. In those submissions, he complained that the Director, the Board and the Judge failed to give appropriate weight to the presence of state acquiescence. He further claimed that the Board failed to make sufficient and proper inquiries before finalising the Board’s Decision. The applicant also alleged that the Director adopted an unfair and pre-determined approach by selectively relying on interpretations of the Country of Origin information that supported a pre-conceived conclusion, whilst disregarding contrary material. He further claimed that his personal circumstances were not properly weighed by the Board, and that he was denied a fair opportunity to properly present his case and have it fairly considered.

5.  As the applicant did not appear at the scheduled hearing on 27 May 2026, we shall accordingly determine the appeal on the basis of the available documents and materials.

OUR REASONS FOR DECISION

6.  In assessing the merits of the appeal, we shall have regard to the legal principles, which this Court has adopted in dealing with appeals in non-refoulement cases. In particular, 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. 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].

7.  Ground 1 stems from a misunderstanding of the Leave Decision. It is plain from the Leave Decision that the Judge determined his application for leave on the basis of whether the applicant’s intended grounds of judicial review were reasonable arguable: see [11] and [14] of the Leave Decision. There is no error in the Judge’s approach.

8.  Contrary to what is asserted in Ground 2, the Judge did consider the Board’s Decision with “rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness”. The Judge did this despite the fact that there was no “properly particularised allegation of procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test, in the [Board’s] Decision” in the applicant’s Form 86. See [8] and [9] of the Leave Decision. Further, given the applicant failed to identify any errors with the Board’s findings of fact before the Judge, the Judge was fully justified to defer to such findings in the Leave Decision.

9.  As to Ground 3, the Judge adequately explained at [11] of the Leave Decision by reference to authorities on why it would not have made any difference even though the Board appeared to have taken too narrow a view of BOR 2 risk. The applicant failed to identify any error as to why that conclusion is said to be wrong in law. Ground 3 has no substance.

10.  As to Grounds 4, 6 and 7, we do not agree with the complaints that the Judge failed to address the legal errors in the Board’s Decision, or that the Judge failed to provide sufficient reasons for his decision. In the first place, the applicant did not raise any grounds in support of his application for leave to apply for judicial review except to state that he was not satisfied with the result of rejection of his case because it was still unsafe for him to go back to his country: see [8] of the Leave Decision. The applicant had not engaged with the reasons of the Board or identified any legal errors in the Board’s rejection of his evidence and claims. There is no basis to suggest that the Judge had failed to address any arguable errors of law and reasoning in the Board’s Decision. We are satisfied that the Judge gave proper and adequate reasons for his conclusion and that the intended judicial review has no reasonable prospect of success.

11.  Further, the applicant made no attempt to challenge the Board’s factual findings on his credibility and other matters before the Judge. The challenges now made by the applicant in Ground 7 and his written submissions are new. He has failed to give any reason as to why these complaints are only raised on appeal and not in the court below. It is well established that this court will generally not entertain new arguments which are fact sensitive and have not been canvassed in the court below and for which leave has not been sought within time: Nupur Mst (above) at [14] and Re Gurpreet Singh [2021] HKCA 1740 at [15].

12.  As to Ground 5, the applicant was given ample opportunities to present his case, both orally and in writing, before the Board and the Judge.[1] In any event, the applicant has not identified which of his complaints the Judge is said to have failed to consider substantively. We see no merit in this ground.

13.  We consider that the Judge properly considered the Board’s Decision as well as the applicant’s complaints. The Judge also gave detailed reasons for finding the Board’s Decision proper without any public law error: see [8] – [14] of the Leave Decision. General and bare assertions of his fear if refouled do not constitute valid grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. The applicant’s complaints lack substance and we see no basis to interfere with the Leave Decision.

14.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.