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HCAL 827/2023
[2026] HKCFI 4808
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 827 of 2023
BETWEEN
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Das Jhorna |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
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consideration of documents only; or |
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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. Time to file the application for leave to apply for Judicial Review be extended to 29 May 2023; and
3. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1.By Form 86 filed on 29 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 24 February 2023 (the “Board’s Decision”).
2.In order to ensure that 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 relevant background of the Applicant, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and need not be repeated herein. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant came from Bangladesh to Hong Kong to work as a domestic helper. She remained in Hong Kong despite the premature termination of her employment. She claims that, if she were to return to her home country, she will be harmed or killed by her ex-husband (“Husband”). The Applicant claimed that the Husband had connections to the Awami League (“AL”), the ruling party and that he was a member of a militant group targeting non-Muslims.
The Leave Application is out of time
5.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. However, the Form 86 was filed late for a few days.
6.In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors is in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.
7.At the hearing, the Applicant orally made a request that I allow the late filing. She also explained that she could not apply by herself and she needed assistance so it took her some time. In the present case, as the delay of a few days is not significant, I allowed the Leave Application to be filed out of time and will consider the substance of the matter below.
Merits
8.It is trite law that:-
(1) 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 a court in a judicial review 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.
(2) 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, 22 December 2016) per Chow J (as he was then) at [142].
9.The Applicant’s grounds of review were set out in her affirmation in support of the Leave Application. The Applicant accepted at the Hearing that these grounds were prepared with the help of another individual but she is content to adopt them as part of her case. Apart from repeating her claim about the danger she faces in Bangladesh, the Applicant also alleged that she encountered language difficulties which denied her 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) It was also complained that the interpreter provided at the hearing before the Board was impatient with the Applicant and did not provide any assistance to her.
10.The Applicant’s complaint about alleged language difficulties has no merit:-
(1) These complaints are wholly 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.
(2) It is noted that the Applicant’s Notice of Appeal to the Board was translated into English with the assistance of a translator. This shows that the Applicant has access to language assistance if needed. The Applicant also confirmed that she had help in preparing the supporting affirmation for the Leave Application which is in English.
(3) To date, the Applicant has failed to produce copies of the Alleged Documents or their English translation.
(4) The Board made its decision after an oral hearing attended by the Applicant where she was able to give evidence and answered questions from the Board. 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 or that there was any attempt by the Applicant to submit the Alleged Documents ([5]).
11.At the Hearing, the Applicant confirmed that she had nothing further to add to the merits of the Leave Application.
12.Having rigorously examined the Board’s Decision, the papers 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 all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness, having regard to the following:-
(1) The Applicant’s claim was not accepted to be credible, given that it took her many years to lodge a non-refoulement claim without any reasonable explanation and in light of the inconsistencies and contradictions in her evidence ([40(a)], [41]).
(2) The Board was entitled to find that the Applicant faced no real risk of serious harm. Putting her case at the highest, the threats from the Husband were limited to the Applicant’s home area ([40(b)]). In any event, since the divorce, the Husband only once made two verbal threats to kill the Applicant in 2011 and 2016 respectively ([19]-[24]). The Applicant never sustained any actual physical harm from the Husband since the divorce ([40(c)]).
(3) Having regard to relevant COI and the personal circumstances of the Applicant, the Board was plainly correct to find that sufficient state protection and reasonable internal relocation alternatives are available to the Applicant. There is no credible evidence to support the Applicant’s bare assertion that the Husband would have the means and determination to pursue her throughout Bangladesh or that she would not be afforded reasonable protection because of her Christian faith ([40(d)]-[40(e)], [55], [75]-[78]).
13.Hence, I am not satisfied that the Board has erred in the enhanced Wednesbury sense. The Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success.
Conclusion
14.In the premises, I make an order that (i) the Form 86 be amended as described above; (ii) time for filing the Leave Application be extended; and (iii) the Leave Application be dismissed.
Dated the 16th day of October 2026
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(Vivian Lai)
for Registrar, High Court
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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 the Applicant’s solicitors must:
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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)).
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Sent to the Applicant
on 16/10/2026
Das Jhorna
Applicant’s ref. no:
Nil |
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Sent 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 16/10/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 20263
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2272/21 (formerly RBCZ 5000002/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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