Case Document

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HCAL 2416/2024

[2025] HKCFI 2594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2416 OF 2024

BETWEEN
	Begum Mst Nurjahan	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Bangladesh who last arrived in Hong Kong in 2022 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her employment was prematurely terminated on 5 June 2023 when she was arrested by police for theft, for which she was subsequently convicted and sentenced to prison for 16 weeks, whereupon she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Bangladesh she would be harmed or killed by her abusive husband. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised by her grandmother in Village Gopinathpur, Hamirdi, Bhanga, District Faridpur, Bangladesh upon the death of her parents when she was a small child. At the age of 12 she was married by her grandmother to her husband who was a much older businessman from the same village.

3.However, her husband was throughout their marriage abusive towards her, and whenever he was drunk he would beat her and threatened to kill her, and after suffering from several severe beatings that she was hospitalized for serious injuries, the Applicant left her husband in 2001 to return to live with her grandmother who then moved their home to Village Chapra Masjid in the same district, whereupon her husband also left for Dhaka and had since no further contact with the Applicant.

4.In 2016 the Applicant went to Oman to work as a domestic helper, and in 2018 she started coming to Hong Kong to work as a foreign domestic helper, and one day in May 2023 she received a telephone call from her neighbor in her home village that her husband had come to her home looking for her and had an argument with her grandmother during which he strangled and killed her grandmother and then fled from the scene, whereupon her neighbor called the police who then took a statement from her neighbor, but it was not clear what further action had been carried out by the police as the Applicant had since been unable to contact her neighbor again.

5.As a result the Applicant became fearful of being harmed or killed by her husband, and so after her last employment was prematurely terminated on 5 June 2023, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 March 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 25 July 2024 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of her husband having killed her grandmother or looking to harm or kill her other than hearsay from a neighbor or any reason for her husband to be suddenly looking for her after having left in 2001 and with no further contact between the 2 of them for more than 20 years that it is not accepted that her husband would still have any adverse interest in her, that in any event it was a private and personal dispute if any between the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 167 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Chittagong where it would be difficult if not impossible for her husband to locate her.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 18 November 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 28 November 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband that caused her to overstay in Hong Kong to seek protection, that even if her account of events were true that it is not accepted that her husband whom she had had no contact since 2001 would have adverse interest in her let alone any reason or motive to harm or kill her, and that in any event it was a private and personal dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Bangladesh as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband that her claim for non‑refoulement protection failed on all applicable grounds.

10.On 10 December 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in paragraphs 37 – 51 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, there is simply no justification to afford her with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.Having thus considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.Moreover, the Applicant recently on 11 March 2025 filed an affirmation requesting to withdraw her application as she has no more problem returning to her home country in Bangladesh.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 24^th day of June 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 24 June 2025 Begum Mst Nurjahan Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24 June 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 24282 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 629/24 (formerly RBCZ 5000663/24)(T4S91) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)