Parvin, Mst Shahanaj v. Torture Claims Appeal Board

HCAL 190/2026

[2026] HKCFI 2729

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 190 OF 2026

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”.

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 and filed on 16 January 2026, 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 2 December 2025 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000190_2026_files/the_Board's_Decision.pdf

2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 2 October 2025 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.In Form 86, the applicant named the Board and “NON-REFOULMENT CLAIMS PETITION OFFICE” as the putative respondents, when only the Board should be named as the putative respondent.

4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent at all. 

5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

6.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.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, she would be harmed or killed by her husband Omar Faruk and her mother-in-law as she failed to give them money.

Disposal on paper

8.The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Hence, the Leave Application is dealt with on paper.

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 applicant did not advance any ground for her intended judicial review in Form 86.

11.In a letter attached to her supporting affidavit/affirmation dated 16 January 2026, which was described as “SELF WRITTEN GROUND IN ENGLISH”, the applicant only mentioned that she had not provided enough evidence to prove her accusation against her husband and mother-in-law, but her life would not be safe if she went back to Bangladesh.  She also explained the reason for her lateness in lodging her non-refoulement claim.  Further, she stated that it was not easy for her to relocate to another place in Bangladesh to escape her husband and mother-in-law, especially when she did not have money.

Discussion

12.First of all, it is the applicant’s duty to provide sufficient evidence in support of her claims to the Board.  The applicant’s danger in her home country had been duly assessed but rejected by the Board.  If the applicant agreed that she did not provide enough evidence to support her claims, the Board did not commit any error.  In any event, if the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

13.Likewise, it is not for this court to assess if the applicant’s explanation for her delay in making a non-refoulement claim was satisfactory.  The Board was fully entitled to assess the credibility of the applicant based on all relevant factors, including whether the applicant had delayed in making a non-refoulement claim.

14.The assessment of viability of internal relocation for the applicant is a finding of facts.  The Board had provided its full reasons in paragraphs 65 to 66 of the Board’s Decision in finding that it would not be unreasonable or unduly harsh for the applicant to relocate within Bangladesh to avoid any harm from her husband and her mother-in-law, if such threat existed at all.

15.Thus, none of the matters raised by the applicant in her said letter can constitute a valid ground for challenging the Board’s Decision.

16.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 [2018] HKCA 524).

17.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.

18.In assessing the appeal/petition by the applicant, the Board held an oral hearing through the Remote Official Visit System on 25 November 2025.  The applicant was present and was assisted by a Bengali and English interpreter.  She was thus given the chance to present her case to the Board in person.

19.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. 

20.The Board considered that the applicant’s serious delay in making her claim for non-refoulement protection raised serious concerns that her claims had been fabricated to provide a basis for her to remain in Hong Kong.  The applicant did not raise a non-refoulement claim after her employment contract as a domestic helper was terminated in 2022, and only lodged her claim after she was arrested in June 2025.  The Board considered that the applicant’s evidence during the hearing indicated that she was focused on her employment and had not considered how she might remain in Hong Kong for her safety.

21.Further, the Board found the applicant’s evidence during the hearing about her contact with her husband, and that her husband always grabbed the phone or called out when she spoke to her son and issued threats, to be problematic.

22.In view of the problematic nature of aspects of the applicant’s evidence, the Board considered it probable that her claims were fabricated following her arrest and detention.  However, the Board found that even if it were accepted that the applicant and her husband had an acrimonious and at times violent relationship, the Board was not satisfied that there was sufficient evidence to establish that her husband would seek to harm or pursue her outside the context of a domestic relationship.

23.The applicant’s evidence was that the violence from her husband and mother-in-law always occurred when they lived together, and they did not pursue her when she was living with her parents, which she did for a lengthy time.  Moreover, the applicant’s evidence was that she would not live with her husband again.

24.The applicant had not lived with her husband for some 8 years and she had not remitted money to him for about four years.  The Board considered it highly speculative that the applicant’s husband, whom she had not seen or lived with in a spousal relationship for several years, would pursue her outside the context of the family home and in circumstances where they would not be living together if she returned to Bangladesh.

25.In paragraphs 63 to 66 of the Board’s Decision, the Board had fully addressed the applicant’s concerns for refoulement and internal relocation, including (1) she would lack family support; (2) the political situation in Bangladesh was unstable; (3) her son would be forced to disclose her whereabouts if she returned to Bangladesh; and (4) she could not relocate to other parts of the country because she did not have the financial means to live in another part of Bangladesh.

26.As aforesaid, the Board found that the applicant, being of employment age with considerable work experience in her own country and two other countries, could reasonably relocate to another part of Bangladesh without undue hardship, should internal relocation be necessary.

27.Accordingly, the Board was not satisfied that there were substantial grounds for believing that the applicant would suffer harm amounting to torture, a risk to her life, CIDTP[1] or persecution from her husband or her mother-in-law if she was returned to Bangladesh.

28.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

29.The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

30.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. 

31.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

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

Dated the 13^th day of May 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