Khatun Mst Halana v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1309/2020

[2025] HKCFI 3469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1309 of 2020

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.   Form 86 be amended on the court’s own motion as follows:-

a.   the Torture Claims Appeal Board /  Non-Refoulement Claims Petition Office be named as the only Putative Respondent; and

b.   the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 26 June 2020 (the “Form 86”), the Applicant sought 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 11 June 2020 (the “Board’s Decision”).

2.In the Form 86, the Applicant has named both the Board and the Director of Immigration (the “Director”) as the proposed respondents.  As per usual practice that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 23 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.The Applicant’s background, the procedural background, the basis of her claim and the arguments she advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference. In summary, the Applicant’s factual basis for seeking non-refoulement is that she will be harmed or killed by an individual called “Kashem” (or “Kasam”) who is allegedly a union leader of the Awami League Party (“AL”), the political enemy of her party, Jamaat-e-Islami (“JEI”) if she returns to Bangladesh. She further claimed that, prior to coming to Hong Kong, she and her family members were subject to violence in number of incidents:-

(1)   She was raped by Kashem and his associates when she was on her way home from a JEI meeting at the end of 2017.

(2)   Her brother in law was killed by the AL in a bomb attack in late 2018.

(3)   Kashem and his gang set fire to her family’s house and possibly kidnaped her children in June 2019.

Discussion

5.It is trite that determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

6.Further, an applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142. No proper ground for her intended challenge was stated in the Form 86 and/or the supporting affirmation. Apart from expressing disagreement with the Board’s Decision in general terms and exhibiting a copy of the same to her supporting affirmation, the Applicant did not provide any particulars as to how the Board is said to have erred, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted a procedurally unfair or irrational manner, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

7.At the Hearing, the Applicant repeated her earlier claim that it would be dangerous for her to return to Bangladesh and that the police could not give her any protection.

8.She also orally raised a new allegation at the Hearing that her father was killed by AL affiliates about a year ago. However, I am not satisfied that her allegation would assist her case:-

(1)   The alleged murder occurred after the Board’s Decision was issued.

(2)   The Applicant claimed that she was told by her mother of her father’s death but her mother did not witness the murder. When asked how she knew about the identity of the murderers, the Applicant claimed that other people had told her mother but she was unable to tell the court who these “other people” were. There is simply no credible evidence to support the Applicant’s assertion (which appears to be based on hearsay from unidentified individuals) that her father’s death was connected to political violence perpetrated by the AL.

(3)   The Applicant’s latest account was not made on affirmation. The Applicant was also unable to provide any supporting documents in relation to the alleged murder. Further, she failed to provide any good explanation as to why she did not attempt to adduce this evidence earlier.

9.Having rigorously examined the Board’s Decision, the papers and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the Unified Screening Mechanism; the burden and standard of proof; correctly identified the issues and observed a high standard of fairness, in particular, I note that after examining the Applicant’s evidence in detail (§§29-38) and relevant Country of Origin Information (§§63-80), the Board rejected her factual account after considering her evidence (§§81-90). The Board was plainly entitled to make this finding given that: (i) despite Applicant’s claim that her family members were office holders of JEI, she clearly had difficulty providing even basic information about JEI, her family’s involvement in JEI and major political events involving JEI; and (ii) the Applicant only raised her non-refoulement claim to the Immigration Department many months after her arrival in Hong Kong in April 2018 to work as a domestic helper and she could not provide any reasonable explanation for the delay.

10.In conclusion, the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

Conclusion

11.Accordingly, I order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 25^th day of August 2025

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

Form CALL-1