Akther Parvin v. Torture Claims Appeal Board

HCAL 380/2020

[2026] HKCFI 1903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 380 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:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 24 January 2020”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 11 February 2020 and filed on 11 March 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-

“Date OF Decision 23-October 2019 Dismissed my Appeal by torture Claims appeal Board – Dismissed”

2.However, neither the Director of Immigration (“the Director”) nor the Torture Claims Appeal Board (“the Board”) made any decision regarding the applicant on 23 October 2019.  The Board only made one decision dated 24 January 2020 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director dated 11 October 2019 (“the Director’s Decision”). 

3.The date mentioned in Form 86, ie 23 October 2019, was actually the date on which the applicant filed her Notice of Appeal/Petition to the Board.  At the oral hearing before this court on 3 February 2026, the applicant confirmed that the Board’s Decision was the only subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000380_2020_files/the_Board's_Decision.pdf

4.The Board found that the applicant’s appeal/petition against the Director’s Decision failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board affirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection.

Amendments

5.The applicant named both the Board and the Director as the putative respondents but did not name any putative interested party in Form 86.

6.As the applicant had confirmed that only the Board’s Decision should be the subject matter of the Leave Application, only the Board should be the putative respondent and the Director should be the putative interested party.

7.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, “Director of Immigration” is added as the putative interested party, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 24 January 2020”.

The applicant’s case

8.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.

9.In sum, the applicant claimed for non-refoulement protection because if returned to Bangladesh, she feared domestic violence by her husband and harassment by Mobarak, who was a member of her village council and an ally of her husband.  She feared that Mobarak would throw acid on her because she hit him when he tried to rape her.

Oral hearing

10.The applicant requested for an oral hearing of the Leave Application. Her case was heard on 3 February 2026 together with her son’s application for leave to apply for judicial review in HCAL 1262/2025.

11.When this court asked the applicant to elaborate on the grounds for her intended judicial review which were stated in her letter dated 10 April 2025, she replied that the purpose of the letter was for her to stay in Hong Kong, as she still had the same problems.  She and her children would be killed if they returned to her home country.  She and her children all have medical issues and wanted to stay in Hong Kong for medical treatment.  She said that the social welfare services in Hong Kong provided assistance to her as a single mother and her children.  She would not get such social welfare services in Bangladesh.  Thus, the applicant asked this court to allow her and her children to stay in Hong Kong where they could receive medical treatments, social welfare services and education.

Grounds for judicial review

12.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).

13.The applicant did not advance any grounds for her intended judicial review in Form 86, nor in her supporting affirmation dated 11 March 2020.  She only mentioned in the affirmation that the application was to apply for leave for judicial review against the decision of the Director of Immigration.  However, as aforesaid, the applicant had already confirmed at the oral hearing before this court that only the Board’s Decision was the subject matter of the Leave Application.

14.The applicant submitted a letter to this court dated 10 April 2025.  In the letter, the applicant mentioned that she had severe problem in her home country and her life was not safe there.  She also mentioned that the interim government could not control the anarchy and the extremists who were controlling the interim government killed many people in the past few months.  Her enemies were still looking for her, and had become more powerful as they were involved with the extremists.  Moreover, the police were inactive because many police were killed by the extremists and the police had no power to save civilians.

15.As aforesaid, the applicant did not elaborate on anything that were advanced in the said letter at the oral hearing.  She only asked this court to let her and her children stay in Hong Kong for medical treatments, social welfare services and education.  These, however, were not valid grounds for judicial review at all.

Discussion

16.First of all, the applicant’s assertion that her life was still in danger cannot be a valid ground for judicial review.  Her alleged danger in her home country had already been fully assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

17.The contents of her letter dated 10 April 2025, which outlined the current chaos in Bangladesh, were not presented before the Board for assessment of her personal risks upon refoulement.  Moreover, her need for medical treatments and social welfare services etc were not presented for the Board for assessment as well.  In any event, those were not grounds for seeking non-refoulement protection under the USM nor for challenging the Board’s Decision in a judicial review.

18.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.

19.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. 

20.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.

21.This court finds that none of the applicant’s assertions in her letter dated 10 April 2025 or her evidence given at the oral hearing before this court constitutes a valid ground for her intended judicial review.

22.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).

23.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.

24.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 19 December 2019 and the applicant was present.  Thus, the applicant was given the chance to present her case to the Board in person.

25.As can be seen from the Board’s Decision, the Board found the applicant’s evidence to be evasive and vague to the extreme.  The applicant failed to answer the Board’s questions designed to examine her claim in more depth.

26.The applicant’s fear of domestic violence was rejected due to the applicant’s own admission that she had no fear of her husband and he was happy in his current situation.  The applicant had left home since 2009 and her husband had not pursued her or otherwise tried to harm her.  The Board also noted that the applicant had taken no steps to divorce her husband when avenues to do so was available in Bangladesh.  The applicant thus had the means of national protection in her own hands through divorce.

27.Concerning the claim for protection based on harassment from the village councillor, the Board found that the applicant was unable to answer any relevant questions or to provide any details.  The Board was not willing to attach any credence at all to the applicant’s claims.  The Board found that the applicant did not suffer the harassment she claimed from Mobarak and she did not have a fear of being persecuted by him.

28.The Board also noted that the applicant had not claimed for non-refoulement protection until 5 years after she arrived in Hong Kong and only did so after being arrested for the second time.  The significant delay seriously damaged the applicant’s credibility.  The applicant’s failure to seek protection earlier was not consistent with a person with a fear of persecution.

29.Despite its findings as summarised above, the Board went on to assess state protection for the applicant.  Although the Board accepted that there was no sufficiency of protection against domestic violence for women in Bangladesh, the Board found that internal relocation was both safe and reasonable for the applicant.

30.Thus, the Board concluded that the applicant had not presented a credible and particularised claim and she could avail herself of an internal relocation alternative.  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.

31.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.

32.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. 

33.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

34.For reasons aforesaid, the Leave Application is dismissed.

Dated the 1^st day of April 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

Form CALL-1