Begum Raksona v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
|
CACV 1045/2025, [2026] HKCA 1540 On Appeal From [2025] HKCFI 4574 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 1045 OF 2025 (ON APPEAL FROM HCAL NO 1908 OF 2020) ________________________ BETWEEN
_____________________
_____________________ JUDGMENT _____________________ The Court: 1.This is the Applicant’s appeal against the order of Deputy High Court Judge (Non-Refoulement Claims) Martin Wong (“the Judge”) dated 7 November 2025 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 17 July 2020 (“the Board’s Decision”). 2.The Applicant is a national of Bangladesh. She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she would be harmed or killed by her former husband for failing to remit money to him to repay his debt. The Applicant’s non-refoulement claim was rejected by the Director, and her appeal against it was rejected by the Board. Details of the Applicant’s claim and the Board’s reasons for rejecting the Applicant’s appeal can be found in the Board’s Decision, the hyperlink to which can be found in the Form CALL-1 dated 7 November 2025 (“the Form CALL-1”). 3.The Applicant’s application for leave to apply for judicial review was refused by the Judge and details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1. 4.By a Notice of Appeal filed on 18 November 2025, the Applicant appeals against the Judge’s decision. The Applicant contends that (sic):
5.In her 4-page written submissions lodged on 8 July 2026, the applicant cited a number of cases and made generic submissions on the general principles of law relating to non-refoulement claims, without advancing any argument against the Judge’s decision as such. The Applicant also submitted copies of the Hong Kong Permanent Identity Cards of her three children and their birth certificates which indicated that the Applicant is their mother, as well as a copy Hong Kong Permanent Identity Card of their father. However, she has not provided any explanation at all as to the relevance of these documents to her present appeal. 6.At the hearing on 11 August 2026, the Applicant attended the hearing in person with the assistance of a Bengali interpreter, and stated that she wishes to remain in Hong Kong to take care of her three children and her husband, who has heart disease. She is receiving social welfare assistance and if she were to return to Bangladesh, she could not support them. She reiterated that she is the main care taker and supporter of her family. 7.The general approach of this Court in dealing with appeals in non-refoulement cases has been set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court would only examine the decision of the judge in light of the grounds advanced by the Applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. This Court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]). 8.Further, the assessment of evidence, Country of Origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The Court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13]. 9.In the present case, the Judge found no error of law or procedural unfairness or irrationality in the decision of the Board. It is incumbent on the Applicant to point out the Judge's errors with sufficient particulars and specifics. In our view, the matters set out in the Applicant’s Notice of Appeal and skeleton submission failed to identify any error on the part of the Judge. They do not constitute any viable grounds of appeal and lack substance. We see no basis to interfere with the Judge’s decision. 10.As to the assertion in her submissions made at the hearing before us that she has to take care of her children and her husband (who are permanent residents of Hong Kong), this does not detract from the fact that she does not have any right to enter or to remain in Hong Kong. It is well-established that a family member (who has a right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: BI v Director of Immigration [2016] 2 HKLRD 520 at [92(7)] and Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at [57], [65] and [69]; Re Purisima Aida P [2022] HKCA 637 at [15]. Accordingly, the fact that the Applicant has built a family here in Hong Kong is not relevant consideration in assessing her non-refoulement claim. 11.For the above reasons, the Applicant’s appeal is devoid of merits. Accordingly, we dismiss the appeal.
The Applicant appeared in person |