YOUSUF NILUFA v. DIRECTOR OF IMMIGRATION

HCAL 1515/2021

[2026] HKCFI 3258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1515 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and the applicant being absent in open court;

1.  On this court’s own motion, the name of the 2^nd putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the second decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 20 September 2021”.

2.  The applicant’s application for leave to apply for judicial review in respect of the decision of the Director of Immigration dated 20 May 2021 be dismissed.

3.  The applicant’s application for leave to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 20 September 2021 be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 2 November 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, namely:-

(1)  “The Decision of the Director of Immigration dated 20^th May 2021”; and

(2)  “The Decision of the Adjudicator dated 20^th September 2021”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 20 September 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 May 2021 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001515_2021_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“USM”). Hence, the Board rejected the applicant’s appeal/petition against the Director’s Decision and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

4.  In Form 86, the applicant named “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the 2^nd putative respondent. However, the adjudicator made the Board’s Decision in his capacity as a member of the Board. Thus, the 2^nd putative respondent should be the Board, and the second decision in respect of which relief is sought should be the Board’s Decision.

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

6.  The applicant also failed to name any putative interested party in Form 86, when the Director should be so named.

7.  Thus, on this court’s own motion, the name of the 2^nd putative respondent is amended to “Torture Claims Appeal Board”, “Director of Immigration” is added as the putative interested party, and the second decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 20 September 2021”.

The intended judicial review in respect of the Director’s Decision

8.  As held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision. There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures. The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review.

9.  Thus, the applicant’s application for leave to apply for judicial review in respect of the Director’s Decision is dismissed. This court will further consider the Leave Application in respect of the Board’s Decision only.

The applicant’s case

10.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

11.  In sum, the applicant claimed for non-refoulement protection because she feared that if refouled to Bangladesh, she would be harmed or killed by members and supporters of the Awami League Party (“AL”) due to her affiliation with the Bangladesh Nationalist Party (“BNP”).

Oral hearing

12.  The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 28 May 2026.

13.  As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

14.  Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

15.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

16.  In the applicant’s Form 86, under the heading “Grounds on which Relief is sought”, the applicant listed 6 grounds which were all very general and were used by many other applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions without any regard to their own situations. Likewise, the applicant did not explain or give any particulars as to how those general grounds were applicable to her own case.

17.  This court will deal with the grounds as discussed below.

Discussion

18.  As mentioned, all the grounds listed under the heading “Grounds on which Relief is sought” in Form 86 are very general. There are a total of 6 paragraphs under the said heading.

19.  First of all, some of the grounds were directed at the Director. However, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, supra). This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

20.  Paragraphs 2 and 4 of the grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can simply be ignored.

21.  In paragraph 1, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life either.

22.  In any event, the Board did assess the applicant’s risk of right to life. However, the Board found nothing in her case that supported her claim under BOR 2 Risk[1].

23.  In paragraph 3, the applicant alleged that the adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on country of origin information (“COI”) but failed to take her personal background and experience into account. However, the applicant did not state which aspects of her personal background and experience had not been taken into account by the Board.

24.  In paragraph 5 of the grounds, the applicant alleged that the adjudicator was procedurally improper and/or unfair when assessing whether to accept or not to accept explanations provided by her, and unreasonably required her to respond to questions that she was not in a position to offer any response. This accusation lacks any particulars in support. The applicant did not state which explanations she provided were not accepted by the Board and which questions she was not in a position to offer any response.

25.  There was in fact nothing wrong for the Board to question the applicant extensively to try to understand her claims better and to assess her credibility and her accounts of the events leading to her claim for non-refoulement protection. The questions were necessary for the Board to fulfil its duty of finding of facts in relation to the applicant’s claim. This court finds no fault or unfairness in the Board’s questioning of the applicant at all.

26.  In the last paragraph, the applicant simply alleged that the adjudicator ought to allow the appeal/petition and the Board’s Decision was irrational. There was no particulars or reasons given to say how or why the Board’s Decision was irrational.

27.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

28.  Thus, none of the grounds that were contained in the applicant’s Form 86 could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

29.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

30.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

31.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 27 August 2021 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

32.  The Board had clearly laid out its findings in the Board’s Decision. The Board found that the applicant was not involved in the fight between people of BNP and of AL in August 2020. There was no evidence suggesting that her father was a target of an attack. Her father was injured because he was involved in the fight. Although the applicant said that she had been approached and threatened by the AL people on three occasions after her father’s death, she was not harmed at all despite her repeated refusals to quit BNP and join AL.

33.  The Board also found that the applicant had already lodged an application to work in Hong Kong in September 2020, which was before her house was allegedly vandalized in November 2020. There was in fact no evidence that the AL people vandalized her house.

34.  The Board found that the treatment the applicant received before she left Bangladesh did not fall within the meaning of torture under section 37U(1) of the Immigration Ordinance or the definition of persecution. The applicant had in fact never been attacked at all. Her evidence, taken as a whole, did not suggest that she would suffer any ill-treatment had she been sent back to Bangladesh.

35.  The applicant had never reported the death of her father and the threats she received to the police when she was in Bangladesh. The Board found from country of origin information (“COI”) that although corruption and abuse of power had been and continued to be major problems affecting the police in Bangladesh, the Bangladeshi government had taken steps to improve the performance of the police and to make it easier for the public to report corruption and lack of service. The Board considered that it was pure speculation that the police would not assist the applicant had she done so.

36.  Moreover, the Board had laid out in paragraphs 55 to 58 of the Board’s Decision its full reasons in finding that internal relocation was a viable option to the applicant to avoid the local AL people.

37.  Thus, the Board rejected the applicant’s claim for non-refoulement protection on all the applicable grounds under the USM.

38.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

39.  Having rigorously examined the Board’s Decision 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 the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

40.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

41.  For reasons aforesaid, the Leave Application in respect of both the Director’s Decision and the Board’s Decision is dismissed.

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