Case Document

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HCAL 1943/2023

[2026] HKCFI 5759

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1943 OF 2023

BETWEEN

	Roy Bina Rani	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 the applicant being absent in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, 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 30 October 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 24 October 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/HCAL001943_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 22 February 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.The applicant named the Board as both the putative respondent and the putative interested party in Form 86, when the Board should only be named as the putative respondent, and the Director should be named as the putative interested party.

4.This court therefore makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

The applicant’s case

5.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.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, she would be harmed by her late husband’s brothers over a piece of land.

Oral hearing

7.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 8 October 2026.

8.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

9.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

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.By a document with the title “Grounds on which relief is Sought” annexed to her Form 86, the applicant alleged that the Board was in breach of procedural fairness in 11 parts, which are summarised as follows:-

(1)  The Board was required to consider afresh the original decision and arrive at its own determination in respect of the applicant’s claim;

(2)  The Board’s Decision was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness;

(3)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirements;

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  The adjudicator acted in a procedurally unfair manner;

(6)  It must be kept in mind that the life and limb of the applicant were in jeopardy and the applicant’s fundamental human rights not to be subjected to torture was involved;

(7)  There was no indication that the adjudicator interacted with the facts of the applicant’s claim, conducted any analysis of the supporting documents or considered the applicant’s right to life under BOR 2[1];

(8)  The applicant would face hardship if returned, and that the Board had significantly relied on source of news which was not officially recognized, or was simply hearsay;

(9)  The applicant’s claims should be considered afresh under the applicable grounds;

(10)  The adjudicator had relied on some outdated cases without considering the dramatic changes. The lack of credible source of information had resulted in the Board making groundless speculation; and

(11)  The applicant had submitted all the documents in spite of her problems in her country. The Board might not have shown greater care and made the claimant disappointed.

12.The contents as stated in the above-mentioned documents were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It seems that the applicant had combined these standard grounds and used them without any regard to her own situation.

13.As aforesaid, the applicant was absent at the hearing on 8 October 2026. Therefore, no elaboration on the grounds stated in the above-mentioned document was given.

14.Nevertheless, as the applicant is relying on the said grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

15.First of all, 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 put forward by the applicant in the document titled “Grounds on which relief is Sought”, which merely contained “key words” such as the Board was “in breach of procedural fairness”, had “unlawfully fettered his discretion”, the Board’s Decision was “unreasonable or irrational”, or that the Board “failed to meet the greater care and duty owed to a self-represented claimant”, in parts (2), (3), (4), (5) and (11) cannot help the applicant at all.

17.With regards to parts (1), (6) and (9) of the applicant’s assertion as summarised above, which concern the Board’s role in determining the applicant’s claims afresh and the standard to be applied in its determination, it is clear from the Board’s Decision that the Board was clearly aware of its role and the standard of proof, that the applicant’s appeal/petition was in the nature of a re-hearing, and that the Board must come to its own conclusion on all issues of credibility, facts and law and the relevant COI[2] (see paragraphs 10 to 15 of the Board’s Decision).

18.This court finds that the Board did fulfil its role and correctly apply the standard of proof in its determination of the applicant’s appeal/petition.

19.The applicant mentioned in part (7) as summarised above that there was no indication that the adjudicator interacted with the facts of the applicant’s claim, conducted any analysis of the supporting documents or considered the applicant’s right to life under BOR 2. However, contrary to her assertions, this courts notes that the Board had discussed and analyzed in details the different versions of the applicant’s account given at different settings (see paragraphs 36 to 71 of the Board’s Decision), and gave full and justified reasons for rejecting her evidence.

20.In short, the Board found that the applicant had provided different accounts of her story in her Non-refoulement Claim Form and at the Board’s hearing. The Board found that the applicant had certainly failed to prove the primary facts of her case on a balance of probabilities. Even on the lower standard of proof required, the Board was not prepared to give credence to any material facts in the applicant’s evidence. The Board stated in no ambiguous terms that it had no hesitation in rejecting the applicant’s evidence. The Board did not accept either version of her account. The Board did not accept that the applicant had any dispute over land with her husband’s family. The Board was even doubtful if her husband was dead or alive. The Board did not accept that she was ever threatened, abducted or raped over a land dispute. The Board did not accept that the applicant remained in Hong Kong due to a fear for her life and safety.

21.Moreover, the applicant had in fact failed to provide any supporting documents to prove her ownership of any land, the death of her husband, any reports to police or any alleged injuries.

22.Thus, the Board found no grounds to believe that the applicant faced a risk of being arbitrarily deprived of her life upon refoulement (see paragraphs 106 to 108 of the Board’s Decision).

23.Finally, in relation to parts (8) and (10) of the applicant’s grounds as summarised above, the applicant failed to identify which pieces of news or cases that the Board relied on were not officially recognized, or were hearsay or outdated. Contrary to the applicant’s accusation, this court finds that the Board had clearly identified the source of all COI and authorities that it referred to in the Board’s Decision.

24.Thus, none of the grounds mentioned in the applicant’s document with the title “Grounds on which relief is Sought” can be valid ground for the intended judicial review.

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, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

27.In assessing the applicant’s appeal/petition, the Board held two oral hearings on 5 and 12 September 2023 respectively. The applicant was present at both hearings. Thus, the applicant did have a chance to present her case to the Board in person.

28.As aforesaid, the Board had analyzed the applicant’s claims in details in paragraphs 36 to 71 of the Board’s Decision and concluded that the applicant had failed to prove, even on the lower standard in the assessment of non-refoulement claims, the primary facts of her claims.

29.Furthermore, the Board found that the applicant had no real risk of harm even on her own evidence given at the Board’s hearing. The Board had put to the applicant that if her new account given at the Board’s hearings were true, she could go home and never ever ask her husband’s family for pity on her daughter and the share of land, then there was absolutely no reason that the two brothers of her husband would want to harm her. The applicant actually agreed with the Board’s suggestion.

30.Thus, the Board concluded that, even taking the applicant’s case at its highest, the Board did not accept that a real risk of serious harm on the applicant’s return was proved.

31.Moreover, on the issue of state protection, the Board found that the applicant had failed to prove a failure of state protection. Taking into account the available COI and the applicant’s individual circumstances, the Board found that there was systemic sufficiency of state protection in Bangladesh, and there was nothing particular to the applicant’s circumstances that the Bangladeshi government would be unable or unwilling to afford her the requisite protection (see paragraphs 79 to 97 of the Board’s Decision). The Board found that the availability of state protection further lowered the risk of the applicant encountering any serious harm on her return to the country.

32.Despite the Board’s findings as summarised above, the Board still assessed the viability of internal relocation for the applicant. The Board had laid out its full reasons in paragraphs 127 to 141 of the Board’s Decision for the conclusion that it was not unduly harsh or unsafe for the applicant to relocate to other parts of Bangladesh to avoid any trouble from the two brothers of her husband.

33.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

34.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged dangerous situations had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

35.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.

36.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

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

Dated the 14^th day of October 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: 14/10/2026 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: 14/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 21542 Director of Immigration Putative interested party’s ref. no.: QA T/C 97/23 (formerly RBCZ 5000028/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)