Akther Sharmin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 79/2023

[2026] HKCFI 4480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 79 of 2023

BETWEEN

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) Isaac Chan:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.By a Form 86 filed on 19 January 2023 (“Form 86”), the applicant, a national of Bangladesh, applied for leave to apply for judicial review against the decision of the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) dated 12 January 2023 (“Board’s Decision”)[1] confirming the decision of the Director of Immigration (“Director”) dated 29 October 2019 and rejecting the applicant’s non-refoulement claim.

2.I refer to the Board’s Decision for the background of the applicant, the basis of the claim, the evidence and the argument the applicant has relied upon, which will not be repeated herein.

3.The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Given the seriousness of the issue involved in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board. However, the Court will not intervene unless there are errors of law, procedural unfairness or irrationality in those decisions: see Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14.

4.General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23.

5.The present application for leave is meant to be a filtering process, and I am not expected to give elaborated reasons for my decision: see Re Zunariyah [2018] HKCA 14, at paragraph 23. I will therefore provide brief reasons for my decision as follows.

Discussion

6.In the affirmation in support, the applicant has made the following complaints:

6.1.  The Director did not consider her claim, and only had one job, that was to dismiss her claim;

6.2.  She submitted some documents to the Director which were in her mother language, but the immigration officer did not receive it and rejected her request for time to translate; and

6.3.  As a woman, her enemy could easily kill her.  

7.At the hearing on 11 May 2026, the applicant confirmed that she did not have any submissions to supplement the documents filed in support of the application under the Form 86.

8.Insofar as the complaint against the Director is concerned:

8.1.  The Director’s decision dated 29 October 2019 contained a detailed assessment of the applicant’s claim and evidence. The assertion that the Director did not consider her claim and was predisposed to dismiss her claim is simply baseless.

8.2.  In any event, the appeal to the Board took place as a re-hearing of the applicant’s claim, and the Board’s Decision supersedes the Director’s decision.

8.3.  The complaint that the Director rejected her documents which were in her mother language and refused to give her time to translate was without particulars, and was contradicted by her own conduct at the appeal hearing before the Board in any event.

8.4.  The Board’s Decision contains the procedural history of the applicant’s non-refoulement claim, including the details of the hearing before the Board on 25 August 2021 (see paragraphs 5 to 8, and paragraph 44 onwards of the Board’s Decision).

8.5.  At paragraph 45 of the Board’s Decision, it was recorded that the applicant wished to add something new to her non-refoulement claim, but there was no mention of any attempt to add any documents.

8.6.  At paragraph 55 of the Board’s Decision, the adjudicator explored with the applicant her earlier assertion that she did not have opportunity to obtain evidence of her claim because she had been in detention. The Board inquired with the applicant as to the reason why she could not obtain the evidence in the over two years since her release from detention. The applicant’s response was that she had no evidence as her phone was broken and someone closed her Facebook account.

8.7.  I note from paragraph 6 of the Board’s Decision that the applicant’s interview with the immigration officer in connection with her claim took place on 11 October 2019, which was after she was released on recognizance on 7 October 2019.

8.8.  Therefore, the assertion in the supporting affirmation that she tried to put in documents in support of her claim at the interview with the immigration officer was contradicted by her answer to the Board as recorded in paragraph 55 of the Board’s Decision that she had no evidence given the phone was broken and someone closed her Facebook account.

8.9.  I find that her complaints against the Director are plainly not arguable.     

9.I have considered the Board’s Decision as a whole by applying the enhanced standard of scrutiny, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision.

10.The Board’s Decision has, with respect, correctly and comprehensively set out the applicable legal principles. I do not see any errors in either the summary or the application of those legal principles.

11.Other than the complaint against the Director as analysed above, the applicant has not made any complaints of irregularities or unfairness in the entire process. I also do not see any irregularities in the procedures.

12.After a detailed analysis of the applicant’s evidence given both before and at the hearing, the Board found various inconsistencies between the applicant’s evidence at the interview with the Immigration Department and the evidence given at the appeal hearing. The Board concluded that the applicant was not a reliable witness (see paragraphs 90 to 99 of the Board’s Decision). The Board accepted some assertions of the applicant, but rejected her case that (i) her first husband had threatened or intended to forcibly remarry her if she returned to Bangladesh, (ii) the political party AL (as opposed to its individual supporters acting in their personal capacity) was involved in her dealings with her first husband, and (iii) her second husband had posted compromising pictures on the internet (see paragraphs 100 to 109). The Board held that the applicant had failed to establish the proscribed risks (see paragraphs 110 to 117). Based on the available materials, the conclusions of the Board were clearly justifiable. I do not see any basis to suggest that the Board was irrational based on the principle set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. As such, there are no merits in the applicant’s third complaint, which is a factual assertion that has effectively been rejected by the Board.

13.I therefore dismiss the application for leave to apply for judicial review under the Form 86.

Dated the 12^th day of August 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