MAYA KHAIRUN NESA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 95/2026, [2026] HKCA 597

On Appeal from [2026] HKCFI 158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 95 OF 2026

(ON APPEAL FROM HCAL NO 2499 OF 2020)

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JUDGMENT

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

1.  This is the applicant’s appeal against the order (“the Dismissal Order”) of Deputy High Court Judge (Non-refoulement Claims) Vincent Lung (“the Judge”) dated 26 January 2026 by which her application for leave to apply for judicial review (“the Leave Application”) against the decision of the Torture Claims Appeal Board (“the Board”) dated 18 December 2020 (“Board’s Decision”) was dismissed. By that decision, the Board upheld the decision of the Director of Immigration (“the Director”) rejecting the applicant’s non-refoulement claim.

2.  The Applicant is a national of Bangladesh.  The basis of her non-refoulement claim had been set out in detail in the Board’s Decision, which may be viewed online via the hyperlink contained in footnote 1 of the CALL-1 Form.  In gist, the Applicant claims that if she returns home, she will be killed or harmed by her political opponents.

3.  In [4] to [10] of the CALL-1 Form, the Judge gave detailed reasons for refusing the Leave Application.

4.  By a Notice of Appeal filed on 4 February 2026, the applicant appeals against the Judge’s decision.  She contends that:

“…the Applicant will face hardship if he [sic] is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

5.  In her Skeleton Submission lodged on 27 February 2026, the applicant submits, inter alia, that the Board failed to scrutinize the Director’s Decision and wrongly adopted a general practice of not questioning the Director’s Decision.  While she has also cited a number of case authorities and set out certain general principles, she has not explained the relevance of those authorities.

6.  The applicant was absent at the hearing of the appeal.  She was contacted by telephone and she indicated that she was not aware of the hearing date.  We do not accept this explanation because the Court has posted a Notice of Hearing to the address provided by her.  Moreover, she had in fact lodged her Skeleton Submission pursuant to the direction given in the said Notice of Hearing.  In the circumstances, we would consider her appeal on the basis of the written materials submitted.

7.  The general approach of this Court in dealing with appeals in non-refoulement cases has been set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court 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.  This Court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

8.  Further, the assessment of evidence, Country of Origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The Court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

9.  In respect of the grounds of appeal, the applicant has identified a number of alleged errors in the Board’s Decision but those are not supported by any particulars.  In any event, those grounds are not viable grounds of appeal because they are not related to any error in relation to the Dismissal Order.

10.  For the above reasons, the appeal is without merit.  We therefore dismiss the appeal with no order as to costs.