Begum Akashi v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1036/2020 on BabelCite. This High Court CFI judgment was delivered on 25 March 2026.
1. By way of Form 86 dated and filed on 29 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 April 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
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HCAL 1036/2020 [2026] HKCFI 1804 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1036 OF 2020
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 29 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 April 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 December 2018, which rejected the applicant’s claim for non-refoulement protection, and confirmed the same. The applicant’s case 3.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 4.In sum, the applicant claimed for non-refoulement protection because if returned to Bangladesh, she would be harmed and killed by members of Awami League (“AL”) as both she and her late husband were members of the Bangladesh Nationalist Party (“BNP”) and refused to quit BNP and join AL. She claimed that her husband was killed by the people of AL. Oral hearing 5.The applicant requested for an oral hearing and her case was heard on 3 February 2026, together with her daughter’s application for leave to apply for judicial review in HCAL 274/2024. 6.The applicant had stated some grounds for her intended judicial review in a document attached to her Form 86 with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, as well as in her supporting affirmation dated 29 May 2020. When this court asked the applicant to elaborate on those grounds, she did not do so but tried to explain the reasons why she could not go back to her country. 7.The applicant said that she had given birth to her daughter, the applicant in HCAL 274/2024, in Hong Kong with another Bangladeshi, who was himself a non-refoulement claimant. Although she was widowed, her family and the Bangladeshi society would not accept her for having a child out of wedlock, nor her daughter for being born out of wedlock. The father of her daughter was married to another woman and had children in Bangladesh, but the applicant did not know if he had divorced his wife. Even if they could marry each other, they did not have the money to get married, but they were still living together. 8.The applicant also mentioned that the current situation in Bangladesh was very bad. People were raped and tortured there. Hence, she and her daughter would not be safe in Bangladesh. The applicant asked this court to allow her and her daughter to stay in Hong Kong as her daughter was still small and could not save herself and she wanted her daughter to receive education here. Grounds for judicial review 9.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 10.The relevant parts of the said document attached to Form 86 and titled “GROUNDS ON WHICH RELIEF IS SOUGHT” are reproduced as follows:-
11.In paragraphs 5, 6 and 7 under the heading “Factual Background” of her supporting affirmation dated 29 May 2020, the applicant asserted the same grounds as stated in paragraphs 6 and 7 of the grounds quoted above. 12.As aforesaid, the applicant did not elaborate on any of the grounds above at the oral hearing before this court, but she did confirm that she wanted to rely on them as her grounds for the intended judicial review. Discussion 13.First of all, the applicant’s assertion that she and her daughter would not be accepted by her family and the Bangladeshi society was not placed before the Board for assessment when the Board was dealing with her own appeal/petition. 14.The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. 15.Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 16.Thus, the applicant cannot rely on any materials not placed before the Board as a ground for her intended judicial review, and there is no reason for this court to re-assess her non-refoulement claim based on any new evidence. 17.This court now turns to deal with the applicant’s grounds as mentioned above. 18.Most of the grounds raised by the applicant are very general, vague and without any specificity. The applicant failed to elaborate on any of the grounds at the oral hearing before this court. Without the applicant’s clarification, this court can only rely on what the applicant submitted in writing to understand her case. 19.From what the applicant had written, it seems that the applicant was alleging that:-
20.First of all, it is not true that there was no oral hearing before the Board. The Board held an oral hearing on 17 January 2020 to assess the applicant’s appeal/petition and the applicant appeared in person. 21.Thus, contrary to what the applicant alleged, she was given the chance to present her case and grounds of appeal to the Board in person at an oral hearing. 22.Given that the applicant did appear at the Board’s hearing and she did give evidence, there is absolutely no basis for her to accuse the Board for failing to give her a fair opportunity to keep forward her submissions in an oral hearing. 23.The applicant alleged that the Board did not invite her to give written submissions and evidence. However, the applicant had lodged a Non-refoulement Claim Form (“NCF”) dated 3 November 2018 and gave details of her case. The applicant also submitted two documents with her NCF. The first of which was a First Information Report dated 20 October 2012. The second was a discharge letter from J Ha Jamalpur Hospital dated 14 August 2014 with English translation. The fact that the Board found these two documents could not lend support to her claim does not mean that the applicant was deprived of the chance to submit evidence. 24.If the applicant did have further written submissions or evidence to submit to the Board, she could have done so at the oral hearing before the Board. It is the applicant’s duty to establish her claims before the Board and she should present whatever evidence and submissions, written or oral, so as to satisfy the Board that she is entitled to non-refoulement protection. It is not right to suggest that the Board has to invite her to submit written submissions and evidence before she would do the same. 25.The allegation that the Board relied on materials and information that were unofficial source of news, hearsay and outdated cases lacks specificity. The applicant failed to identify which pieces of information and materials she alleged were wrong for the Board to rely on. On the contrary, as can be seen in the Board’s Decision, the Board did consider extensive, fully-referenced COI when considering whether state protection was available and internal relocation was viable to the applicant. Thus, there is simply no substance in the applicant’s allegation in this regard. 26.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 27.Thus, the general assertions put forward by the applicant, which merely contained “key words” such as the Board’s Decision was unreasonable and irrational, or that there was procedural unfairness, cannot help the applicant at all. This court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision. 28.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration, supra). 29.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid. 30.As can be seen from the Board’s Decision, the Board had analyzed the applicant’s evidence with care and questioned the applicant to try to understand her claims better and to assess her credibility and her accounts of the events leading to her claim for non-refoulement protection. The Board found the applicant to be an unreliable and incredible witness after hearing the applicant and due consideration of the evidence. The applicant’s claims regarding the two incidents that led to her flight from Bangladesh, the death of her husband and her fear from AL were rejected in their entirety. The Board found that the applicant had built up a case of her life being in danger if she was refouled to her country in order to strengthen her protection claim. 31.The Board gave full reasons in paragraphs 56 to 71 of the Board’s Decision as to why the applicant’s claims were rejected and why it was not convinced, even to the low standard applicable for the assessment of non-refoulement claims, that the applicant had any reasons for her fear of the AL people who allegedly would harm or kill her if she was refouled to Bangladesh. 32.These were findings of facts which were within the exclusive ambit of the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 33.Further, the applicant admitted to the Board that it was her speculation that the police would refuse to provide assistance to her because she was not from AL. The Board found from COI that state protection was available in Bangladesh. The authorities and police were willing and able to offer protection to citizens and take proper actions on all kinds of people having committed offences under the law. 34.Moreover, given the applicant’s background and work experience, the Board found internal relocation to other areas in Bangladesh, say, Dhaka, to be viable for the applicant to alleviate any fears she might have. 35.Thus, the Board was satisfied that the applicant did not have a real risk of being subjected to torture, ill-treatment, arbitrary deprivation of life or persecution if she were to return to Bangladesh, and concluded that the applicant’s claim for non-refoulement protection had failed on all the applicable grounds under the USM. 36.The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 37.Having rigorously examined the Board’s Decision 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 applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 38.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 39.For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of March 2026
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
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