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

HCAL 863/2023

[2026] HKCFI 4810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 863 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:

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 5 June 2023 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against (i) the decision of the Director of Immigration dated 10 January 2022 which rejected the Applicant’s non‑refoulement claim on all applicable grounds (the “DOI Decision”); and (ii) the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 24 May 2023 which affirmed the DOI Decision (the “Board’s Decision”).

2.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

3.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 short, the Applicant claimed that she would be harmed or killed by members of the Awami League (“AL”) because of her brother’s affiliation with the Bangladesh National Party (“BNP”) which is a rival political party to the AL.

Discussion

4.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.

5.At the outset, I should point out that the challenge against the DOI Decision is out of time and in any event misconceived. The appeal to the Board is conducted by way of rehearing and the Board’s Decision effectively supersedes the DOI Decision, see: Re Moshsin Ali [2018] HKCA 549 at §45.

6.Hence, the focus should be on the Board’s Decision. The relevant general principles are well established. Judicial review does not operate as a further avenue of appeal. Though in non-refoulement cases, the Court applies a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court must not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, availability of state protection and viability of internal relocation are primarily within the province of the Board. The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

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.In the Form 86, the Applicant complained that the Board/the Director (i) has failed to give consideration to the Applicant’s situation as an unrepresented litigant; (ii) erred in its conclusion including on the finding of the availability of internal relocation alternatives. I note that these complaints are vague and unparticularised, without any reference to the underlying circumstances in support of the proposed grounds. There is no attempt to elaborate how the Applicant was unfairly prejudiced by the lack of legal representation or how the Board has erred in its findings. On such failure alone, leave should be refused.

9.At the Hearing, the Applicant confirmed that she had nothing else to add to her application.

10.In any event, I have reviewed 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.

11.The Applicant’s complaint about lack of legal representation is groundless:-

(1)  It is well established that the high standards of fairness applicable does not require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom, see: Tamang Ganga Bahadur [2026] HKCA 4 at §8 per Barma JA.

(2)  As recorded in the Board’s Decision, the Applicant attended an oral hearing before the Board where she was given the opportunity to give her oral testimony and to comment on the documents in relation to support of her claim (§7). In discharge of its obligation to conduct the hearing as a joint endeavour, the Board had asked the Applicant various questions to clarify the material aspects of her case (§11). Accordingly, I do not see how the conduct of the Applicant’s case was prejudiced by the lack of legal representation.

12.I am also satisfied that the Board has given adequate reasons for its decision and has conducted a meticulous analysis of the evidence put before it. Amongst others, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm (§25):-

(1)  The Applicant’s account was vague, inconsistent and incredible. For example, despite the claim that her family had to leave for Jordan to save their lives, the Applicant was unable to provide any documentary evidence or further information such as their whereabouts and their contact details (§13a). She was also unable to provide any detail as to her brother’s alleged involvement in BNP activities (§13b).

(2)  Despite claiming that she was raped by AL affiliates in June 2017 (i.e. the “Rape Incident”) and that she was treated and received a “rape test” in the hospital, she was unable to provide any documentary evidence of the hospital treatment or the rape test. Her account of the Rape Incident was also unsatisfactory and inconsistent (§§9j, 10j, 11f, 13c).

13.The Applicant’s contention that she will not have protection in Bangladesh or that she cannot relocate to other parts of the country is a bare assertion not supported by credible evidence:-

(1)  On state protection, having considered relevant Country of Origin information, the Board was entitled to form the view that adequate state protection is available in Bangladesh notwithstanding the existence of certain shortcomings such as corruption and inefficiencies in the legal system (§25b).

(2)  On the availability of internal relocation alternatives, it is clear that, the Applicant, as an able-bodied adult with reasonable work experience, should have no difficulty relocating to places such as Dhaka. She could also seek assistance from various women shelters operated by state or non-state organisations (§25c). It is noted that there is no evidence that she would face any persecution or harm after relocation or that the AL would have the determination to pursue the Applicant.

14.In such circumstances, the Board’s Decision satisfies the enhanced Wednesbury test and cannot be said to be irrational.

15.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

16.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