Nimmi Rabeya Akther v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 185/2023 [2026] HKCFI 4481 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 185 of 2023 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Isaac Chan:
Observations for the Applicant: 1.By a Form 86 filed on 9 February 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 2 February 2023 (“Board’s Decision”) [1] confirming the decision of the Director of Immigration (“Director”) dated 28 December 2021 and rejecting the applicant’s non-refoulement claim. 2.In the Form 86, no putative interested party was named. The Director should be the putative interested party. The Form 86 shall be amended accordingly on the court’s own motion. 3.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. 4.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. 5.General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23. 6.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 7.In the affirmation in support, the applicant has made the following complaints:
8.At the hearing on 11 May 2026, the applicant repeated her plea that it was risky for her to go back to Bangladesh as her life would be under threat. She did not have further submissions to supplement the documents filed in support of the application under the Form 86. 9.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.The Board’s Decision has also set out the procedural history of the applicant’s non-refoulement claim, including the details of the hearing before the Board on 22 August 2022 (see paragraphs 19 to 20 and 22 to 28 of the Board’s Decision). The applicant has not made any complaints of irregularities or unfairness in the entire process. 12.The gist of the applicant’s complaint as set out in her affirmation in support was that the Director did not conduct a proper enquiry to understand her situation and her countries situation. Such complaint is without merits. The Director’s decision has been reassessed by the Board. The Board’s Decision has superseded the Director’s decision: Re Moshshin Ali [2018] HKCA 549 at paragraph 45. 13.The Board has conducted a detailed analysis of the applicant’s evidence given both before and at the hearing and took no issue with the applicant’s credibility (see paragraph 36 of the Board’s Decision). However, the Board found that there was no substantial ground for believing that the applicant would suffer sever ill-treatment or serious harm upon her refoulement, as during the time when the applicant was harassed by the AL members, she (a member of BNP) and her father (a secretary of a small group in their home village) was unhurt and continued to live in the same area for six months before she departed to Hong Kong without much problem (see paragraph 52 to 57). The Board also held that the applicant was targeted by a group of local AL members when she attended meetings of BNP shortly before the elections in 2018, and there was no basis to suggest a persecution on the national level based on the applicant’s political opinion (see paragraph 67 to 72). The Board concluded that the applicant has failed to establish the proscribed risks. 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. 14.I therefore dismiss the application for leave to apply for judicial review under the Form 86. Dated the 12th 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
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Cases cited in this judgment