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HCAL 3448/2019
[2025] HKCFI 2772
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3448 of 2019
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BETWEEN
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Akter Luna |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
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:
Order by Deputy High Court Judge Levy:
The Leave Application be dismissed
Introduction
1. By prescribed Form 86 filed on 21 November 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 5 November 2019 (“Board's Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 12 December 2018 (“Director's Decision”) rejecting the applicant's non-refoulement claim.
2. On 13 May 2025, the court received a memo from the Removal Assessment and Litigation (Removal and Deportation) Section of the Immigration Department. Enclosed with the said memo is the applicant’s signed memo to court together with an English translation dated 24 April 2025 applying for withdrawal of the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.
Background
3. The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.
4. The applicant is a national of Bangladesh. She arrived in Hong Kong on 26 October 2015 to work as a domestic helper. Upon the premature termination of her employment contract on 29 December 2015, she did not depart and overstayed since 13 January 2016. On 24 January 2016, she was arrested by police for suspected overstaying and was referred to the Immigration Department. On 30 January 2016, she lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being killed by the members of the Awami League (“AL”) due to her past affiliation with the Bangladesh Nationalist Party (“BNP”).
5. The applicant stated that her husband was an active member of the BNP and the applicant was its member. In around 2009, her husband was assaulted by the AL members after he refused to join the AL. The applicant decided to come to Hong Kong to work as a domestic helper in September 2013 after her husband went to hiding for having been framed cases for murder and bombing at the instigation of the AL. As a result, the husband could not support the applicant.
6. When the applicant finished her first employment contract in August 2015, she went back to Bangladesh to see her children and stayed with her sister. During this stay, about 10 to 12 AL members came to her sister’s house. They vandalized the house and attacked the applicant and her family with hockey sticks and wooden poles. The applicant had bruises and scratches all over her body. A report made to the police was not entertained because the police were also AL party members. As the applicant felt it was no longer safe to stay in Bangladesh, she came back to Hong Kong to work as a domestic helper on a second employment contract.
7. The applicant stated that she did not contact the husband since she left but heard from a relative that he was in prison,
8. The Director decided against the applicant’s claim on all applicable grounds. Hence, the Director rejected the claim and the applicant appeal to the Board.
9. In the Board’s Decision, whilst the Board accepted the basic facts in relation to her own circumstances that she had been randomly attacked, the Board however found that the salient aspects of her account were not reliable. The Board did not accept that (i) the applicant came under any threat as a personal target of AL; (ii) the continuing threats directed to the applicant by the AL; (iii) the injuries she suffered had reached the required level of severity; (iv) the applicant faced risk throughout Bangladesh; and (v) the state of Bangladesh was unwilling to help the applicant as asserted. The Board therefore did not accept that the applicant would face any risk of harm if refouled. It further found that reasonable state protection and internal relocation would be available. The Board dismissed her appeal and confirmed the Director’s Decision.
Legal principles applicable to judicial review
10. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for 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.
Discussion and conclusion
11. The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. The applicant has failed to identify any arguable error of law, any relevant matter that the Board had allegedly failed to consider or any other reason why the Board was wrong.
12. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the central piece of the applicant’s evidence was not reliable and that the applicant failed to discharge her burden of proving the asserted fears and risks.
13. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.
Withdrawal of Leave Application
14. In her memo, the applicant stated that she wanted to withdraw all her cases in Hong Kong as she wanted to return to her country as soon as possible. She further stated that her issues back home had been resolved and she could go home.
15. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.
Order
16. The Leave Application be dismissed.
Dated the 8th day of July 2025
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(Alfred Chan)
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 8/7/2025
Akter Luna
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 8/7/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.: USM 14983/18/12/340/B1808
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 4897/18 (formerly: RBCZ 10679/16) (PSO)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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