Akter Sharmin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1723/2025 [2026] HKCFI 4477 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1723 of 2025 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 K.W. Lung: Leave to apply for Judicial Review be refused. Observations for the Applicant: THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 28 July 2025 of the Torture Claims Appeal Board (“the Board’s Decision), which dismissed her appeal against the Director’s Decision refusing her non-refoulement claim as mentioned below. 2.The applicant did not ask for a hearing. 3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. The applicant 4.The applicant is a national of Bangladesh. She is an illegal immigrant. She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her husband and the Awami League people. 5.Details of her claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001723_2025_files/the_Board's_Decision.pdf The Director’s Decision 6.The Director considered the applicant’s claim in relation to the following risks:
7.By way of Notice of Decision dated 24 April 2025 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated. The Board’s Decision 8.The applicant appealed the Director’s Decision to the Board. On 17 June 2025, the Board conducted an oral hearing for her. The applicant had given evidence and answered the Board’s questions. 9.Having considered the evidence, the Board found that the applicant did not seek protection after arriving in Hong Kong until after she was arrested, which adversely affected her credibility under section 37ZD of the Ordinance [64]; that reasonable state protection is available and internal relocation is viable if she returns to Bangladesh. [132]-[133] 10.For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision. Application for leave to apply for judicial review of the Board’s Decision 11.The applicant has filed Form 86 dated 4 August 2025 for leave to apply for judicial review of the Board’s Decision. 12.In support of her application, the applicant did not raise any specific ground to challenge the Board’s Decision. She has attached a copy of the Board’s Decision to her affirmation. DISCUSSION 13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 15.It seems that there is no finding of the facts by the Board. At paragraph 61 of the Board’s Decision, the Board stated that it could not rely upon demeanour of the applicant, thus it did not make a determination on the facts of her case. It is trite that the tribunal or the court cannot solely rely on the demeanour of the witness to determine the facts of the case, However, the tribunal or the court should proceed to find the facts of the case notwithstanding it was unable to rely solely on the witness’s demeanour. There are guidelines for doing so, such as through other documentary evidence or through oral examination. The finding of the facts is the primary duty of the Board. This was not done in this case. 16.The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were) held:
Another board of the Court of Appeal in M v Torture Claims Appeal Board; and Director of Immigration [2021] HKCA 1523, Hon Poon CJHC, Barma JA and Au JA, also held: 17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
18.Even if the Board accepted the facts of the applicant’s claim, it is clear that the applicant’s claim fails because of the Board’s findings of state protection and internal relocation, which will alleviate her risks if she returns to Bangladesh. 19.The applicant has raised no valid ground to challenge the Board’s Decision. 20.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision. DISPOSITION 21.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application. 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