RE AKTER MOUSUME

CACV 111/2025, [2025] HKCA 692

On appeal from [2025] HKCFI 567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 111 OF 2025

(ON APPEAL FROM HCAL NO. 3627 OF 2019)

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JUDGMENT

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Hon H. Au-Yeung J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Teresa Wu (“the Judge”) given on 21 February 2025[1] refusing leave to the applicant to apply for judicial review against the decision dated 29 November 2019 of the Torture Claims Appeal Board (“the Board”) dismissing the applicant’s appeal against the decision dated 10 April 2018 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim.

2.  The applicant’s appeal was scheduled to be heard on 18 July 2025.  The applicant was directed to lodge her written skeleton argument not less than 28 days before the hearing and further warned that if she failed to do so, she shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with her appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 19 May 2025 and the Notice of Hearing dated 2 June 2025. 

3.  Despite the directions, the applicant has failed to lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.    

The applicant’s claim

4.  The applicant is a national of Bangladesh, aged 37. She last entered Hong Kong to work as a foreign domestic helper on 29 March 2014. After her employment contract was prematurely terminated on 24 June 2014, she did not depart and has overstayed since 9 July 2014.  On 10 December 2015, she raised a non-refoulement claim.  

5.  The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by people of the ruling party Awami League (“AL”) as she was a supporter of Bangladesh Nationalist Party (“BNP”). The details of her claim were set out at [8] to [25] of the Board’s decision. According to the applicant, she started supporting the BNP in 2012 and participated in meetings, rallies and protests against the AL. In 2012, she alongside her college friends were subjected to frequent verbal and physical threats and assaults by people from the AL. The most serious incident was when she was stabbed on her left leg by a group of AL people who were armed with knives and wooden sticks. She had never reported the incidents to the police as she claimed that the police would only follow the instructions of the AL. Fearing for her safety, the applicant decided to come to Hong Kong to work as a foreign domestic helper. She received training for 4 months in Dhaka and arrived in Hong Kong on 29 March 2014.

The Director’s and the Board’s decision

6.  By a decision dated 10 April 2018, the Director rejected her claim based on torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds. The applicant appealed to the Board. A hearing took place on 8 May 2019 during which the applicant had testified and answered questions from the Board. By a decision given on 29 November 2019, the Board dismissed her appeal.

7.  In gist, the Board found that the applicant’s claim could not be made out on any of the applicable grounds, having regard to the low-level involvement of the applicant in the BNP, the minor nature of her injuries and the long lapse of time when the incidents happened in 2012 or 2013. The Board further assessed on the basis of the country of origin information (COI) that state protection would be available to the applicant and that internal relocation to Dhaka is a viable option for her.

The Judge’s decision

8.  By a Form 86 dated 5 December 2019, the applicant applied for leave to judicially review the Board’s decision. She did not put forward any grounds for seeking relief but only stated in her affirmation that she would like to reject and to set aside the Director’s Decision. 

9.  The application was dealt with on paper. By a Form CALL-1 dated 21 February 2025, the Judge refused to grant leave to the applicant to apply for judicial review and gave her reasons at [4] to [6] as follows:

“Discussion

4. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676) and have therefore refused leave. The leave requirement should operate as a ‘filtering’ process. I am not required or expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14 at §23); it is sufficient to state my observations, which I make after considering the detailed reasons and full analysis of the Board and in view of the absolutely minimal materials adduced by the Applicant in the Leave Application.

5. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142), and further to make full and frank disclosure of all material facts to be verified by an affidavit. However, no such grounds have been identified by the Applicant, and she merely contended that she would like to “reject” and set aside the Director’s Decision in her supporting affirmation and nothing else.

6. The Court has repeatedly emphasized, specifically in the context of applications of this nature, that it does not usurp the role of the primary decision maker in judicial review.  While the Court should examine whether the procedure adopted by the primary decision maker meets the high standard of fairness, it should not intervene if the materials provided by an applicant do not demonstrate any basis or ground to challenge the legality, rationality or fairness of the process below (see Re Zunariyah (supra) at §22).  In the present case, the Applicant has failed to meet such threshold.  He has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, which the Board reached after correctly identifying the issues, making findings of fact based on the available evidence  and applying the law and relevant legal principles relating to the Grounds.  In these circumstances, I am not satisfied that the Court should intervene, bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board due to the seriousness of the issue at hand.”

This appeal

10.  On 7 March 2025, the applicant filed a Notice of Appeal to appeal the Judge’s decision. The applicant stated in her Notice of Appeal that the Judge’s decision was unfair and it did not scrutinize her application for judicial review against the decisions of the Board and the Director, and that her life would be in danger if she returns to Bangladesh.

Discussion

11.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

13.  In light of the established legal principles set out above, we are of the view that the grounds put forward by the applicant have no merits.  Our reasons are as follows:

(1)  The Court will only interfere with the Board’s assessment of risk and its decision if it can be demonstrated that the decision is erroneous in law, irrational, made upon procedural irregularity or unfair. In her Form 86 and supporting affirmation, the applicant had not set out any ground for seeking relief or made any challenge to the reasons and findings of the Board.

(2)  Further, the Judge, having scrutinised the Board’s decision at [6] of her decision, concluded that there was no proper basis to disturb it. The applicant has failed to identify any error in the Judge’s decision or to identify with particulars as to why she disagreed with the decision or that it was unfair. In the circumstances, the Judge’s conclusion that the intended judicial review has no reasonable prospect of success cannot be faulted.    

14.  Having considered the materials before us, we agree with the Judge that to apply for judicial review should be refused.

Disposition

15.  For the above reasons, this appeal is dismissed.

[1] [2025] HKCFI 567

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.