Akter Mst Sonya v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 834/2023

[2026] HKCFI 4809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 834 of 2023

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:

1.  Form 86 be amended on the court’s own motion that the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office be named as the Putative Respondent.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 30 May 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 19 May 2023 (the “Board’s Decision”).

2.To ensure the Board is properly named as the proposed respondent, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.An oral hearing was requested by the Applicant. It took place before me on 29 July 2026 (the “Hearing”) and the Applicant attended in person.

Background

4.The Applicant’s background, the basis and history of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is unnecessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, the Applicant came to Hong Kong to work as a domestic helper. She claimed that she cannot return to her home country of Bangladesh because her husband (the “Husband”) wanted to kill her and marry another woman.

Discussion

5.The leave application is intended to be a filtering process and elaborate reasons are not necessary, see: Re Zunariyah [2018] HKCA 14 at §23. Hence, I shall set out the brief reasons for my decision below.

6.It is well established that determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which this court will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

7.An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (unreported, 22 December 2016) per Chow J (as he was then) at §142. Where a Form 86 contains only general assertions without particulars as to underlying facts or matters upon which the Board’s Decision is said to be erroneous, such assertions are not effective grounds to support a judicial review, see: Re Haider Khalil [2021] HKCA 223 at §16.

8.The Applicant’s grounds of review were set out in her affirmation in support of the Leave Application. Apart from repeating her claim about the danger she faces in her home country, the Applicant also alleged that she encountered language difficulties which prejudiced her right to a fair hearing:-

(1)  It is alleged that the documents submitted by the Applicant (the “Alleged Documents”) were rejected by the Board because they were in the Applicant’s native language and the Board did not give the Applicant time to arrange for translation.

(2)  The Applicant also complained that the interpreter provided at the hearing before the Board was unhelpful and impatient.

9.The Applicant’s complaint about alleged language difficulties has no merit:-

(1)  These complaints are based on a generic template. They are unparticularised blanket allegations without reference to the specific facts in question, for example, there is no attempt to identify what the Alleged Documents are and how they would assist the Applicant’s claim. There is also no elaboration as to how the interpretation at the relevant hearing is said to be unsatisfactory so as to prejudice the Applicant’s presentation of her case.

(2)  It is noted that the Applicant’s Notice of Appeal to the Board is translated into English, which suggests that she has access to English language assistance if needed. At the Hearing, she also confirmed with me that she could speak “a little” English.

(3)  To date, the Applicant has failed to produce copies of the Alleged Documents or their English translation.

(4)  There is no indication from the Board’s Decision that the Applicant had any difficulty presenting her case or understanding the various questions asked by the Board during the hearing (see §§26-33). Or that there was any attempt by the Applicant to submit the Alleged Documents. As recorded in the Board’s Decision, she confirmed with the Board that she was happy with the documents provided and did not wish to make any changes (§24).

10.At the Hearing, the Applicant confirmed that there was nothing else she would like to add.

11.Having read the Board’s Decision, I do not find any error of law, procedural unfairness or irrationality which can give rise to a reasonably arguable case for review. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters.

12.I am satisfied that the Board has given adequate reasons for its decision and has conducted a meticulous analysis of the material aspects of the evidence put in support of the Applicant’s claim. Amongst others, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm:-

(1)  The fundamental premise of the Applicant’s claim, namely that the Husband wanted to kill the Applicant because she refused to divorce him does not stand (§§11-12, 25)[2]. Based on the relevant Country of Origin information (“COI”), there is no need for the Husband to seek the consent of the Applicant to divorce her and a divorce can be effected by the Husband unilaterally in Bangladesh (§§22, 26, 31-32, 37, 43). There is no evidence to the contrary.

(2)  In any event, the Applicant’s evidence was that the Husband made no attempt to contact her after she left their home in 2020. There was no attempt to contact her whilst she stayed with her parents in safety (§§38, 46).

13.In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

Conclusion

14.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 16^th day of October 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