Case Document

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HCAL 1116/2023

[2026] HKCFI 5138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1116 OF 2023

BETWEEN

	Khatun Mst Khadeja	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 7 July 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 29 June 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001116_2023_files/the_Board's_Decision.pdf

2.The Board rejected the applicant’s claim for non-refoulement protection as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 8 December 2022, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named “Fraser SYME Member of the Torture Claims Appeal Board” as the putative respondent and the Board as the putative interested party.

4.In fact, the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

5.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

6.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, she might be harmed or even killed by two loan sharks named Mr S1 and Mr S2 due to her inability to repay the loans obtained from them. The applicant claimed that the loan sharks were rich and powerful leaders of the ruling party Awami League.

Oral hearing

8.The applicant requested for an oral hearing and her case was heard on 3 September 2026.

9.When this court asked the applicant for the grounds of her intended judicial review, the applicant merely told this court that she wanted to stay in Hong Kong as she could not repay her loans, she was injured on her neck near the chin and hand, her son told her that he was trying to repay her debt as soon as possible but he wanted some more time to do so.

Grounds for judicial review

10.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.The applicant did not advance any grounds for the intended judicial review in Form 86.

12.In her supporting affirmation dated 7 July 2023, the applicant merely mentioned that she did not want to return back to her country because her life was still in danger there.

Discussion

13.First of all, the applicant’s danger in her country had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

14.What the applicant said at the oral hearing could not amount to any valid grounds for judicial review at all.

15.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

16.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

17.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 31 May 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

18.As can be seen from the Board’s Decision, the Board had extensively questioned the applicant at the Board’s hearing in order to try to understand her case better.

19.The Board had laid out its findings and assessment of the applicant’s claims in paragraphs 28 to 39 of the Board’s Decision, and it is not necessary to repeat the same here.

20.In gist, the Board found that the applicant was not a credible witness due to the multiple, material inconsistencies and implausibilities in her evidence, her inventing evidence at the Board’s hearing and non-persuasive explanations. The Board rejected that (1) the applicant ever borrowed any money from Mr S1 or Mr S2; (2) the applicant was in debt to Mr S1 or Mr S2; (3) Mr S1 and Mr S2 or their followers had ever assaulted the applicant’s husband; (4) Mr S1 or Mr S2 had ever threatened to harm the applicant; and (5) the applicant overstayed in Hong Kong in fear of harm from Mr S1 or Mr S2.

21.The Board considered that the applicant had fabricated her claims so as to create a basis upon which to apply for protection in Hong Kong. On the evidence before the Board, it did not find that the applicant faced a real risk of the proscribed harm from Mr S1 or Mr S2 on any of the applicable grounds under the USM, if she was refouled to Bangladesh.

22.Thus, the Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the USM.

23.Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found that the applicant did not face any real risk of harm.

24.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

25.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm upon her return to Bangladesh, it is not necessary for the Board to consider internal relocation.

26.The finding of facts, including the assessment of evidence and risk of harm, was primarily within the realm of the Board in dealing with her appeal/petition. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

27.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

28.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

29.For reasons aforesaid, the Leave Application is dismissed.

Dated the 16^th day of September 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 16/09/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 16/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 21282 Director of Immigration Putative interested party’s ref. no.: QA T/C 1098/22 (formerly RBCZ 5000973/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)