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HCAL 3407/2019
[2025] HKCFI 4084
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3407 OF 2019
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BETWEEN
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Khatun Lipi |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 18 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 1 November 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003407_2019_files/the_Board's_Decision.pdf
2. The Board decided that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), and confirmed the decision of the Director of Immigration (“the Director”) dated 10 January 2019, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named both the Board and Immigration Department as the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent and only the Director should be named as the putative interested party.
4. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because she feared that if returned to Bangladesh, she would be targeted by the Awami League (“AL”) because of her father, who was a member of the Bangladesh Nationalist Party (“BNP”) and she had been assaulted several times before she was kidnapped and raped in 2012 by 3 to 4 AL members.
Oral hearing
7. The applicant requested for an oral hearing of the Leave Application, and her case was heard on 26 June 2025.
8. However, the applicant failed to advance any ground for her intended judicial review. She merely reiterated that she had some problems in Bangladesh but confirmed with this court that her problems there had all been presented to the Board for assessment. The applicant further said that she could not go back to her country with her two children who were both born in Hong Kong, the father of the children would not take care of them as he was married to a local woman in Hong Kong and raising two children all by herself in Bangladesh would be impossible.
Grounds for judicial review
9. 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).
10. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 18 November 2019. She merely stated in the affirmation that she would like to reject and review the decision as they disregarded her dangerous situation.
11. As aforesaid, she did not advance any ground for the Leave Application at the oral hearing either. She only mentioned that it would be impossible for her to raise her two children all by herself in Bangladesh.
Discussion
12. 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] HKCA524).
13. Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
14. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 24 September 2019 and the applicant was present. Thus, the applicant did have a chance to present her case to the Board in person.
15. The Board questioned the applicant for details of her claims but found that the applicant was not a witness of truth and that she had fabricated her claims in relation to AL.
16. In relation to the inconsistencies of the applicant’s evidence, the applicant told the Board about her medical issues. The Board considered these issues and the impact they allegedly had on her memory. The Board accepted that the applicant was taking depression medication at the time of the Board’s hearing and was minded that clinical depression could affect memory. On the other hand, the Board did not accept the applicant’s alleged overdose of Panadol in the past had led to brain injury.
17. Despite the above, the Board considered that the applicant’s depression did not explain all of the serious inconsistencies and gaps in her narratives. The Board considered that the nature of he claims was far from persuasive. It was the applicant’s father who was active in politics. The applicant was a mere voter for and not even a member of the BNP. Thus, it was hard to understand why AL pursued the applicant with such vigour while it did not pour as much energy into silencing the father himself. It was the applicant’s evidence that her father was not physically assaulted, and AL people had been to the family home only once since 2012. If up until 2012 they were attacking the applicant in order to put pressure on her father to stop his BNP activities, it made no sense that AL would do virtually nothing for the following seven or so years.
18. The Board found the applicant gave inconsistent evidence regarding her and her family’s level of involvement in politics. She did not provide a consistent timeline of the assaults perpetrated against her either. Though the Board acknowledged that the kidnap and rape incident, if true, would be highly traumatizing and it was likely that the applicant was unable to recall details of that ordeal, the applicant’s brief description of these events was inconsistent in major respects, such as whether she lost consciousness in the car during the kidnap or after she was taken to the location. She was also inconsistent with the location where she was kidnapped.
19. The applicant was inconsistent as to where she had stayed after the kidnap incident, which happened in 2012, and before she left Bangladesh to take on an employment as a foreign domestic helper in Hong Kong in 2014. She was also inconsistent as to whether her father had gone into hiding in 2018, and whether she and her father had sought help from the police.
20. Based on the gaps, inconsistencies and other problems with the evidence and having carefully considered the applicant’s claims, the Board rejected the claims both individually and cumulatively in their entirety.
21. The Board found that neither the applicant, nor anybody else in her family, had ever been a member or an active supporter or perceived by AL to be a member or supporter of BNP. Consequently, neither the applicant, nor any other member of her family, had ever been subjected to threats and assaults by AL. The applicant was never subjected to threats, assaults, sexual assaults or kidnapping because of her own or her father’s actual or imputed political opinion. The applicant did not have to seek medical treatment and did not have to go into hiding. The applicant’s family was not trying to leave the house and relocate in order to avoid harm from AL.
22. In light of its findings, the Board concluded that the applicant could return home and she would not be of any adverse interest to any person or organization, including AL. There was not a real risk the applicant would face any of the proscribed forms of harm should she return to Bangladesh. Thus, the Board confirmed the Director’s Decision which rejected the applicant’s claim for non-refoulement protection.
23. The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to her claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.
24. As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).
25. As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.
26. The assessment of evidence and risk of harm are primarily within the realm of the Board. This court finds no errors of the Board in reaching its decision based on all the evidence before it.
27. 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.
28. 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
29. For reasons aforesaid, the Leave Application is dismissed.
Dated the 9th day of September 2025
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( Irene LEE )
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 his 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/Handed to the applicant/the applicant’s solicitors
on: 9 September 2025
Applicant’s ref. no:
Nil |
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Sent/Handed 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:
9 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15389/19/1/262/B1941
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 4880/18
(formerly as RBCZ 10851/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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