Case Document

100%

HCAL 368/2024

[2026] HKCFI 5133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 368 OF 2024

BETWEEN

	Aktur Mst Nazma	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. 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 23 February 2024, 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 16 February 2024 (“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/2024/HCAL000368_2024_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 1 November 2023, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.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.

4.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, she feared being killed by her husband Abul Khalek.

5.The applicant stated that her husband, who was a criminal and engaged in politics, wanted money from her, and to kill her when she could not pay him the money.

6.At the Board’s hearing, the applicant raised a new claim of fear from her maternal uncle’s wife. Her maternal uncle borrowed 900,000 taka from villagers to fund the applicant’s trip to Hong Kong, her expenses, her food and the interest on the loan, and her training for work as a domestic helper in Mymensingh. The uncle gave his house and the land it was built on as collateral. When the applicant called the uncle in January 2023 to tell him that her employment contract had been terminated, she had no money and was unable to repay him the loan, the uncle’s wife threatened to kill her for not repaying the loan.

Oral hearing

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

8.When this court asked the applicant to elaborate on the grounds of her intended judicial review which were contained in her supporting affirmation, the applicant merely replied that she did not want to elaborate on any of them and she had no other grounds to raise.

Grounds for judicial review

9.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).

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

11.In her supporting affirmation dated 23 February 2024, under the heading “GROUNDS FOR JUDICIAL REVIEW”, the applicant advanced 6 grounds for judicial review. The grounds are summarised as follows:-

(1)  The adjudicator did not consider her claim;

(2)  The adjudicator did not accept her documents as the documents were in her mother language;

(3)  The officer refused to give her time to translate the documents because he had no time;

(4)  The translator did not help her at all and became angry if the applicant did not understand;

(5)  The interpreter asked her not to take long time for interview as he had another job; and

(6)  She asked the court to help her and save her life.

12.As aforesaid, at the oral hearing, the applicant only said that she would rely on what were stated in her affirmation and did not elaborate on any of the matters contained therein.

Discussion

13.First of all, all the matters that were stated as “GROUNDS FOR JUDICIAL REVIEW” in her supporting affirmation (except ground (6) which is not a ground at all) were asserted without any specificity. Many applicants in similar applications used them like a template without any regard to their own cases. The applicant is no exception.

14.She did not state: (1) how the adjudicator did not consider her claim (apart from saying the adjudicator did not take time or did not think about her life); (2) which part(s) of her claim was not considered; (3) what documents she intended to submit were rejected as they were not translated; (4) how the interpreter or translator’s attitude had prejudiced her; and (5) what she wanted to tell the Board was not presented because of the attitude of the interpreter or translator.

15.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

16.Thus, the general assertions that were contained in the applicant’s affirmation cannot help her at all.

17.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).

18.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.

19.In assessing the applicant’s appeal/petition, the Board held 2 oral hearings on 22 and 25 January 2024 respectively and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

20.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.

21.The Board had laid out its findings and assessment of the applicant’s claims in paragraphs 57 to 65 of the Board’s Decision, and it is not necessary to repeat the same here.

22.In gist, the Board found that the applicant’s answers to its questions were convoluted and on occasion contradicted her earlier evidence. The changes to the applicant’s evidence, coupled with denying what she had said at the hearings were instances that caused the Board to consider that the applicant was inventing evidence in response to its questions. The Board was unable to give the applicant the benefit of doubt. The Board did not find the applicant to be a credible witness.

23.The Board had considered the applicant’s claims individually and cumulatively, as well as the personal circumstances of the applicant. On the evidence before it, the Board did not consider that the applicant faced a real risk of any of the proscribed harm from her husband if she was refouled to the risk state. The risk from the wife of her uncle was considered as invented during the Board’s hearing, and contradicted her earlier evidence that she spoke to her uncle, not his wife, in January 2023 and he shouted at her over the telephone.

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

25.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.

26.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).

27.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.

28.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.

29.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.

30.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

31.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 22442 Director of Immigration Putative interested party’s ref. no.: QA T/C 1046/23 (formerly RBCZ 5001047/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)