Begum Sakera v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 329/2023

[2026] HKCFI 4483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 329 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:

1.  The Form 86 be amended to name the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

1.By a Form 86 filed on 3 March 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 7 July 2022 (“Board’s Decision”)[1] confirming the decision of the Director of Immigration (“Director”) dated 4 November 2021 and rejecting the applicant’s non-refoulement claim.

2.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.

3.In the Form 86, the Board was named both as the putative respondent and the putative interested party. The Director should be the putative interested party instead. The Form 86 shall be amended accordingly on the court’s own motion.

4.The present application was made nearly 8 months after the Board’s Decision was made. It is therefore out of time under Order 53 rule 4 of the Rules of the High Court, Cap. 4A, which provides that an application for leave to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

5.In considering whether to extend the time for applying for leave for judicial review, the Court shall consider, inter alia, (a) the length of the delay, (b) the reason or explanation of the delay, and (c) the merits of the substantive application: Re Thomas Lai [2014] 6 HKC 1 at paragraphs 43 to 45, approved by the Court of Appeal in AW v Director of Immigration & Anor [2016] 2 HKC 393 at paragraph 27.

6.In the Form 86, the applicant attached a statement explaining her delay. It was suggested that she did not receive the Board’s Decision, and was only made aware of that by an immigration officer. She then went to the Board’s office at North Point to collect the Board’s Decision and made the present application afterwards.

7.At the hearing of the present application on 11 May 2026, the applicant confirmed her statement in the Form 86 and suggested that she had changed address before and that might be the cause of the failure to receive the Board’s Decision. Once she had collected the decision, she immediately took out the present application.

8.To decide if extension of time should be granted, I shall also consider the merits of the present application.

9.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.

10.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.

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

12.In the Form 86, the applicant has set out 11 paragraphs of intended grounds for judicial review:

12.1.  It is trite law that a hearing before the Board is a rehearing, and the adjudicator is required to consider afresh the original decision and arrive at his own determination in respect of the claims.

12.2.  The Board’s Decision to refuse the applicant's appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.

12.3.  The Board had unlawfully fettered his discretion by refusing the applicant's appeal on the grounds that they didn't satisfy with the requirements.

12.4.  The Board had failed to meet the greater care and duty owned to a self-represented claimant.

12.5.  The adjudicator acted in a procedurally unfair manner in dealing with applicant's appeal.

12.6.  It must be kept in mind that "the life and limb are in jeopardy” and the applicant's fundamental human rights not to be subjected to torture in involved.

12.7.  In dismissing the applicant's appeal/petition, there was no indication that the adjudicator interacted with the facts of applicant's claim, conducted any analysis of the supporting documents or turned his mind to the ground under consideration being the risk of violation of the applicant's right to life under BOR2.

12.8.  The applicant would face hardship if she was to return back to her home country and that the Board has significantly relied on source of news which is not officially recognized, or it is simply hearsay.

12.9.  The characterisation of the appeal process was grounded in the consistent practice of the Board in treating each appeal/petition as a de novo hearing, whereby the Board was not confined to any grounds of appeal put forward, but should consider all the facts of the claim afresh to come to its own findings. The established practice of the Board in this regard was either grounded and illustrative of its relevant obligations and/or in any case has induced a procedural expectation that a claim would be considered afresh under applicable grounds.

12.10.  The adjudicator had relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculation.

12.11.  In spite of the applicant's problems in his home country are very severe and he had already submitted all the documents on behalf of the applicant's claim. The Board did not show greater care and made the claimant disappointed.

13.At the hearing on 11 May 2026, the applicant pleaded to the court for more time until her younger child finished vaccination and did not have any submissions to supplement the documents filed in support of the application under the Form 86.

14.Applying the enhanced standard of scrutiny, I do not see any errors of law, procedural unfairness or irrationality in the Board’s Decision.

15.Insofar as the substantive law concerning non-refoulement claims is concerned, 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. I will consider the Board’s application of the legal principles regarding the proper procedure separately.

16.The Board’s Decision contains a summary of the procedural history of the applicant’s non-refoulement claim (see paragraphs 1 to 5 of the Board’s Decision). The Board took the view that the appeal could be justly determined without an oral hearing for the applicant on the following bases (as set out in paragraphs 24 to 27):

16.1.  The applicant’s non-refoulement application form was prepared with the assistance of her legal representative at the time;

16.2.  She had attended a detailed interview with the Immigration Department in the presence of her legal representative, and she was asked a number of questions;

16.3.  The interview was read back to her in the presence of her legal representative and no issues were raised suggesting anything was missing or incorrect;

16.4.  The applicant has been provided with an opportunity to make further submissions with her appeal to the Board, and she had essentially maintained the same factual assertions as before;

16.5.  It was therefore reasonably clear the applicant had provided everything she wished the Board to consider and that there was nothing either explicitly or implicitly lacking in the information before the Board;

16.6.  The Board had decided to presume, for the benefit of the applicant, that her factual assertions were the truth, and the Board was prepared to overlook those issues raised by the Director that might be damaging to the credibility of the applicant; and

16.7.  The country of origin information that the Board cited in the Board’s Decision relating to internal relocation was similar to those relied upon in the Director’s decision, and therefore the applicant already had notice of the substantive issues which had led to the Board’s Decision.    

17.The leading authority concerning if an oral hearing before the Board would be necessary is ST v Betty Kwan and Anor [2014] 4 HKLRD 277. Without repeating the Court of Appeal’s full discussion, the following parts of the applicable principles are worth highlighting herein:

17.1.  There is no absolute right to an oral hearing, and the ultimate question is one of fairness (§22);

17.2.  The question of whether an oral hearing should be afforded must be decided by the adjudicator at the petition stage after considering all relevant circumstances (§37); 

17.3.  The Board should bear in mind the interest at stake and the potential consequence of the decision (§38);

17.4.  The adjudicator should ask himself whether there is anything in the torture claimant’s story, the evidence and information available, the legal issues raised, the arguments mounted, the decision of the Director, the written petition of the claimant, and so forth, which is material to the determination of a claim, and which high standards of fairness would require the torture claimant to be given an opportunity to be heard orally (or further in writing), before a decision is made on the torture claim (§40);

17.5.  The adjudicator should also consider whether there is or are any advantage(s) of holding an oral hearing as opposed to merely deciding the petition on paper (whether based on the original petition or based on the petition plus further written representations submitted at the request of the adjudicator) (§45);

17.6.  It should be remembered that by nature, written submissions do not afford the flexibility of oral presentations, as they do not permit the person involved to mould his arguments to the issues the decision-maker appears to regard as important (§46); and

17.7.  When it comes to procedural fairness, particularly when high standards of fairness are required, the process itself is as important as the outcome, quite apart from the fact that very often process actually determines the outcome (§54).

18.Applying the principles as set out in ST v Betty Kwan and Anor, including but not limited to those summarised in paragraph 17 above, I find the Board’s reasons for not holding an oral hearing to be cogent. The Board overlooked the challenges to the applicant’s credibility and accepted her entire factual case, which was presented to the Director with the assistance of the legal representative. The same factual case was maintained in the written submissions to the Board. And the Board relied on country of origin information (“COI”) of the similar effect as the information relied on by the Director, and therefore the applicant had had the opportunity to address those matters. Coupled with the fact that the applicant’s case was actually not a complicated one, I see no unfairness arising from the lack of an oral hearing before the Board.

19.Whilst the applicant has made a broad assertion that the Board acted in a procedurally unfair manner, no particulars were provided. Contrary to the assertion of the applicant that the Board had failed to consider the applicant’s claim afresh, it is obvious from the Board’s Decision that the applicant’s claim was reconsidered entirely. I see no merits in the applicant’s assertion that the Board had acted in a procedurally unfair manner.     

20.Finally, the applicant asserted that the Board’s Decision was irrational, and the Board had relied on unofficial news or hearsay and also cases which were outdated. Again, no particulars were provided.

21.I have considered the Board’s Decision in detail. As summarised above, the Board considered the applicant’s claim on the basis that the entire factual case was the truth. It was accepted that a local troublemaker who was active in the then ruling political party Awami League repeatedly proposed to marry the applicant and threatened to pour acid onto her face upon her refusal in 2015. The applicant then left to work in Saudi Arabia, and returned to Bangladesh in 2018. Upon knowing her return, the troublemaker requested to marry her again, causing the applicant to leave and work in Hong Kong. In 2021, the applicant married another Bangladeshi national in Hong Kong and feared that if she returned to Bangladesh, she would be harmed by the troublemaker for refusing to marry him and for marrying somebody else and becoming pregnant to him (see paragraphs 6 to 9 of the Board’s Decision).

22.The Board further accepted that, upon the consideration of the COI, state protection would not be available to the applicant should she return to Bangladesh (see paragraphs 36 to 40). However, the Board concluded internal relocation to the capital of Bangladesh would be possible and not unduly harsh (see paragraphs 41 to 50).

23.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.

24.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