Akter Sharmin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 440/2026 [2026] HKCFI 5342 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 440 of 2026 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 To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 23 February 2026 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 15 January 2026 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 November 2025 (the “Notice”), refusing her application for non-refoulement protection. 2.On 29 June 2026, the Court received a letter from the Applicant asserting that she needs to close all her cases in Hong Kong because she needs to go back to her country as soon as possible. On 30 June 2026, the Court received from the Immigration Department a copy of a note from the Applicant to the Immigration Department expressing her wish to cancel her case of judicial review. On the basis of these documents, the Court could not be satisfied that the Applicant truly intended to withdraw her leave application or that she understood the consequence of the withdrawal. In the circumstances, the Court considered it would be to the Applicant’s best interest to process her leave application. 3.The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered that the leave application can be justly determined on paper without an oral hearing. However, while this Form CALL-1 was being prepared, the Court was informed that the Applicant had been removed back to Bangladesh. Background 4.The Applicant is a Bangladeshi national. She entered Hong Kong on 6 February 2024 to work as a foreign domestic helper. She quit her employment on 13 May 2024 because of some employment dispute. She did not return to Bangladesh and overstayed in Hong Kong. She fell sick on 2 September 2025 and called an ambulance. After her discharge from the hospital on 5 September 2025, she was detained in Castle Peak Bay Immigration Centre. Shortly after that, she lodged her non-refoulement claim. In gist, she claims, if returned to Bangladesh, she will be harmed or killed by members of the Bangladesh Nationalist Party (the “BNP”) because of her support for the antagonizing political party, the Awami League (the “AL”). The factual background leading to the present application, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. She does not believe the Bangladeshi authorities and police would protect her, because the AL had been toppled in the student movement in June 2024 and the BNP is in power. She does not believe internal relocation would be viable because the BNP members have a vast network across Bangladesh and could track her down anywhere within Bangladesh. 5.In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. Her application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision. The finding of the Board 6.The Applicant testified before the Board. The Board found her evasive even as to many straight forward questions. It considered her responses were lacking in appropriate or reasonable details, some of which were markedly inconsistent on material points from her earlier evidence in her non-refoulement claim form and record of screening interview. It considered the number and nature of the inconsistencies and suspicious allegations were sufficiently serious as to undermine the reliability of her evidence. The inconsistencies are set out in paragraphs 31 to 37 (on pages 11 to 17) of the Decisions. The Board also considered her failure to justify why she did not promptly lodge her claim after her arrival in Hong Kong in February 2024 or upon learning about the risk of harm as early as in June 2024 damaging to her credibility. In conclusion, the Board found the Applicant’s case was vague and unbelievable and she was not telling the truth. Save for her background, the Board did not accept her evidence, including the alleged risk of harm from the BNP members. Accordingly, it found the claimed risk of ill-treatment is not real or foreseeable and her fear of persecution is not well-founded. 7.The above finding would have been sufficient for the Board to dismiss the Applicant’s appeal on the basis that she had failed to establish the factual basis to support her claim. However, it did not do so. It assessed the Applicant’s claim on her case put at the highest. It found, even if there were such risk of harm as alleged, the risk is localised, but on the basis of credible country of origin information (“COI”), it found there is nothing to suggest that the government or the state would be involved in or indifferent to or would provide any form of encouragement to the BNP members in threatening or harming her. It found such ill-treatment, if any, would not be serious or would not attain the minimum level of severity and would fall outside the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance. Applying the law applicable to the non-refoulement protection to the above finding of fact, the Board also came to the conclusion that the Applicant is not entitled to protection under of the applicable grounds under the USM. 8.The Board found the question of internal relocation does not arise. But, were it necessary to make a finding, it found on the basis of the COI there is nothing to suggest that the local BNP members could search for her throughout the whole country. It also found, given the Applicant’s background, age and working experience, she could relocate to various cities as identified by the Director in the Notice. 9.For all these reasons, the Board dismissed the Applicant’s appeal. Legal principles applicable to judicial review 10.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[6]. Grounds for judicial review 11.The Applicant did not advance any grounds for judicial review in the Form 86 or in her supporting affirmation. In her supporting affirmation, she said she did not want to go back to Bangladesh because her life would still be in danger and she wanted to stay in Hong Kong until it is safe for her to return. In effect, she is challenging the Board’s finding of fact that her claimed risk of ill-treatment is not real or foreseeable and her fear of persecution is not well-founded. That is impermissible, save for errors of law, procedural unfairness and irrationality in the Decision. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. Conclusion 12.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. Despite finding the Applicant incredible, the Board assessed her claim on the basis of the case as she asserted. It was on that basis that the Board found the Applicant’s feared risk of harm is unreal, unforeseeable and not well founded. Then, applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, the Applicant’s leave application is refused. Dated the 24th day of September 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
Form CALL-1 [1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000440_2026_files/the_Board's_Decision.pdf [2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [4] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [6] [2018] HKCA 524 at [14(1)] |
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