RE DISANAYAKA MUDIYANSELAGE WIJERATHNA BANDARA alias DISSAMAYAKE MUDIYANSELAGE WIJIERATNE BANDA

CACV 58/2026, [2026] HKCA 487

On Appeal From [2026] HKCFI 76

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 58 OF 2026

(ON APPEAL FROM HCAL NO 2208 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 Levy (“the Judge”) given on 12 January 2026[1] refusing his application for leave to apply for judicial review against the decision dated 17 September 2020 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed the applicant’s appeal against the decisions dated 28 February 2013 and 10 October 2018 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim on the torture risk ground[2] (in the first decision), and BOR 3 risk[3] , persecution risk[4] and BOR 2[5] risk grounds (in the second decision).

Background

2.  The applicant is a national of Sri Lanka born in 1960. He came to Hong Kong in August 2004 and overstayed his visa. He made his first non-refoulement claim in November 2005, and a further claim in April 2013. His claims were made on the basis that if he returned to Sri Lanka, he would be harmed or killed by several groups of people for his suspected involvement in the murder of Mr. PF, an active member of the United National Party (“UNP”): (i) members of the UNP, (ii) the sons and/or other supporters of Mr. PF, (iii) members of the Liberation Tigers of Tamil Ealam (“LTTE”), (iv) gangsters and/or underworld figures connected to the UNP, and (v) the Sri Lankan authorities, including the police. 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 [1] of the Form CALL-1. After considering the documents filed by the applicant and the oral submissions made by the applicant in support of the application for leave to apply for judicial review, the Judge dismissed the application for reasons stated at [6]-[10] of the Form CALL-1. We shall not repeat them here.

Appeal to this Court

3.  On 23 January 2026, the applicant filed his Notice of Appeal against the Judge’s decision, in which he stated that he disagreed with the Board’s decision and that his case was not properly investigated and or fairly determined.

4.  The applicant lodged written submissions in which he made general assertions that the Director failed to give proper weight to the presence of state acquiescence, that the Board placed too much weight on country of origin information instead of the applicant’s personal background and experience, and that the Board made findings which should have resulted in the appeal being allowed. The applicant did not provide any particulars of how these assertions related to the facts and circumstances of his own case. Nor did the applicant identify any errors of the Judge in dismissing his application for leave to apply for judicial review.

5.  At the hearing, the applicant stated that he had nothing to add to the written materials lodged in support of his appeal.

Discussion

6.  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.

7.  In the present case, the Board accepted that the applicant had served in the Sri Lankan Navy and that he faced genuine and subjective fear as a suspect by the police and members of the UNP immediately after the shooting of Mr. PF.  However, the Board identified material inconsistencies in his claims, including conflicting accounts of the shooting incident, and in relation to his political affiliations and his role in the Sri Lankan Navy. It found that the applicant had largely exaggerated the threats and the perceived risk of harm, as he had lived in Sri Lanka for four years after the shooting without being arrested, and had rejoined the Sri Lankan Navy and subsequently departed from the country lawfully. The Board also rejected his claims of harm from the LTTE as the group no longer exists, and found no real risk of harm arising from his affiliation with the Sri Lanka Freedom Party. The Board thus concluded that the applicant failed to substantiate any real risk of harm entitling him to non-refoulement protection under any of the applicable grounds.  These were findings of fact open to the Board based on the evidence it received, and for the reasons it gave.

8.  The Board’s rejection of much of the applicant’s account of events means that there is no factual basis to support the applicant’s claim that he faces the risk of harm if he were to be refouled. However, the applicant’s arguments as advanced on appeal do not engage with the Board’s reasons for making its findings, and do not show any basis for challenging the findings.

9.  Equally, the applicant has not identified (or even alleged) any error in the decision of the Judge, or any viable ground of appeal against the Judge’s decision. We are satisfied that the Judge gave proper and adequate reasons for her conclusion that the intended judicial review has no realistic prospect of success.

10.  The applicant’s appeal is accordingly dismissed.

[1] [2026] HKCFI 76

[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/HCAL002208_2020_files/ the_Board's_Decision.pdf