Case Document

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HCAL 1269/2026

[2026] HKCFI 5141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1269 OF 2026

BETWEEN

	Nahar Sayela	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 14 July 2026, 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 8 May 2026 (“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/2026/HCAL001269_2026_files/the_Board's_Decision.pdf

2.The Board found that the applicant was unable to make out her claims for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 8 January 2026 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named “Torture Claims Appeal Board / Non-reFoulement Claims Petition OFFice” as the putative respondent, when only the Board should be so named.

4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

5.The applicant named the Director as the putative interested party but spelt the name wrongly as “Director oF Immgration”.

6.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

7.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.

8.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, she would be harmed or killed by her cousins named Akhlasur Rahaman, Ataur Rahaman and Ahadur Rahaman, who are the sons of the applicant’s paternal auntie named Meena Bibi (the cousins and the auntie were collectively referred to as “the Enemies”) due to a land dispute.

Oral hearing

9.The applicant requested for an oral hearing of the Leave Application and her case was heard on 3 September 2026.

10.When this court asked the applicant for the grounds of her intended judicial review, the applicant told this court that she could not accept the Board’s Decision, as the Board did not consider her case properly. The applicant said that she mentioned her problems in her screening interview and at the Board’s hearing, but the Board found that since her family remained safe in Bangladesh, the Board assumed that she would be safe there too. The applicant then said that the Board blamed her for not being able to produce evidence, but it was not possible for her to prove the torture she suffered.

11.The applicant said that she had mentioned 7 incidents in her case to the Board, but the Board made wrong decision on these 7 incidents. However, she would only rely on 2 of these incidents. The applicant confirmed that the first incident was the one mentioned in paragraphs 19 to 21 of the Board’s Decision.

12.The applicant at first mentioned that she was tortured during this first incident. However, when this court pointed out to her that in paragraph 19 of the Board’s Decision, there was no mentioning of her being tortured, and what happened were just that her house window was hit and her main gate was broken, the applicant then said that the torture on her did not occur in this incident but on 4 November 2012.

13.The incident on 4 November 2012 was mentioned in paragraphs 28 to 30 of the Board’s Decision. The applicant confirmed that the only torture she suffered was the rape on her by Ahadur as mentioned in paragraph 28 of the Board’s Decision.

14.The applicant also said that her brother was kidnapped and murdered on 18 October 2012. The applicant’s mother went to her uncle’s house and complained about the brother’s death. However, the uncle’s family assaulted the applicant and her mother. The applicant confirmed that this incident was mentioned in the Board’s Decision (see paragraph 27 of the Board’s Decision), but the Board did not believe it.

15.The applicant then told this court that she had mentioned to the Board that her youngest sister was also raped (which was mentioned in paragraph 34 of the Board’s Decision), but again the Board did not properly consider this aspect of her claim.

16.The applicant went on to reiterate the land dispute between the two families which occurred in 2002.

17.Finally, the applicant said that she was put in jail since January 2026 and she did not know what happened since then. She said that she would be in danger if refouled to Bangladesh, and she requested to stay in Hong Kong to save her life.

Grounds for judicial review

18.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).

19.The applicant did not advance any grounds for the intended judicial review in Form 86, nor in her supporting affirmation dated 14 July 2026.

20.As aforementioned, at the oral hearing before this court, the applicant said the Board did not properly assess her case and the 7 incidents she presented for assessment. She reiterated the basis of her claim, namely that there was a land dispute between her family and her Enemies’ family, she and her sister were raped, her brother was kidnapped and murdered, and her mother was assaulted during the incident when she went to the uncle’s home to complain about the death of the applicant’s brother.

21.The applicant further said that she would be in danger if refouled to Bangladesh, and she requested to stay in Hong Kong to save her life.

Discussion

22.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.

23.Contrary to the applicant’s accusations at the oral hearing before this court that the Board had not properly assessed her case and all the incidents she presented, this court finds that all the incidents mentioned by the applicant had been considered by the Board, save that the applicant told the Board that the purpose of visit by herself and her mother to her auntie’s home on 4 November 2012 was to ask her if she had done anything to the applicant’s brother, which was different from what the applicant told this court, namely that they went to the uncle’s home to complain about the death of the applicant’s brother.

24.Thus, what the applicant said at the oral hearing could not amount to any valid grounds for judicial review at all.

25.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).

26.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.

27.In assessing the applicant’s appeal/petition, the Board held two oral hearings on 16 and 31 March 2026 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

28.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. What transpired at the Board’s hearings were laid out in paragraphs 52 to 79 of the Board’s Decision, where the Board discussed all the incidents that the applicant described and relied on as the basis of her non-refoulement claim.

29.The Board had presented its consideration of the evidence, including its assessment on the credibility of the applicant and whether the applicant had shown a real risk of harm, in paragraphs 82 to 92 of the Board’s Decision, and it is not necessary to repeat the same here.

30.In gist, the Board found multiple material inconsistencies in the applicant’s claims that rendered the Board to conclude that it was unwilling to attach any credence to the applicant’s evidence that she faced risks from the Enemies. The Board found the applicant not credible and the Board did not accept her evidence regarding the threats she allegedly faced.

31.In the circumstances, the Board found that the applicant had not shown that she faced a real risk of harm if refouled to Bangladesh. In any event, the applicant herself said that her concern was that the risk that she feared was a risk to her quality of life, as opposed to a risk of harm to her life. The Board found that this was especially so since the applicant’s evidence at the Board’s hearing was that despite the Enemies’ threat that if the applicant’s family did not accept the price offered, they would forcefully occupy the land, and there was no acceptance of the offered price, no forceful occupation of the land had occurred or was even attempted, even though the Enemies lived in a different portion of the same house, with the two portions separated by a mere 7 foot wall.

32.Thus, the Board found that the applicant was unable to make out her claims for non-refoulement on all the applicable grounds under the USM.

33.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.

34.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).

35.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.

36.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. The applicant’s assertion that the Board did not consider her case properly has no merit at all.

37.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.

38.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

39.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 27964 Director of Immigration Putative interested party’s ref. no.: QA T/C 2392/25 (formerly RBCZ 5002289/25) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)