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HCAL 2594/2024
[2026] HKCFI 4089
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2594 OF 2024
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BETWEEN
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Banu Mst Nahida |
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 (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The Applicant is a 33-year-old national of Bangladesh who last arrived in Hong Kong on 5 June 2023 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 5 June 2025 or within 14 days of its early termination, but when her employment was prematurely terminated on 10 July 2023, she did not depart and instead overstayed, and was arrested by police some 10 months later on 23 May 2024. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by her father’s enemies from the political party Awami League (“AL”) as her father supported their rival Bangladesh Nationalist Party (“BNP”). She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in a village in Naogaon, Bangladesh where she resided with her grandparents while her younger siblings resided with her parents in a neighboring village in the same district, and where her father was a local BNP member.
3. After leaving school the Applicant in early 2019 started coming to Hong Kong to work as a foreign domestic helper to make her living, returning to Bangladesh only for holidays to visit her family.
4. In 2022 while working in Hong Kong, the Applicant was informed by her father on the phone that he had been attacked by some local AL supporters for failing to heed their demand to quit BNP, and as a result he had moved the family away from his home village to stay in her grandparents’ place in the neighboring village to avoid further threats from those AL people.
5. In April 2023 the Applicant returned to Bangladesh for holiday, during which she was informed by her father that when he recently returned to his home in his home village to collect some items, he was again threatened by those local AL supporters that if he still failed to heed their demand to quit BNP, they would kill him and rape his daughters, and so he advised her to leave the country to return to Hong Kong to avoid threats from those AL supporters.
6. As a result of her father’s warning, and after her last employment was terminated in July 2023, the Applicant was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 July 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
7. By a Notice of Decision dated 26 July 2024 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).
8. In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and does not accept that there is any real and foreseeable risk of her being subjected to any harm or ill-treatment by those enemies of her father or any AL people upon her return to Bangladesh due to the absence of any past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to intimidate her father to quit BNP, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Bangladesh with a large population of 168 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Chittagong or Khulna where it would be difficult if not impossible for anyone to locate her.
9. On 5 August 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 18 November 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 28 November 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.
10. In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her father’s enemies or AL supporters that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first overstaying in Hong Kong until some 10 months later and only after her arrest, that in any event there was no reliable evidence of any real threats from any AL people against her or her father who had remained unharmed all these years in Bangladesh that it is not accepted that the Applicant would face any such risk in particularly that she never has had any political involvement with BNP that there is no reason or evidence for the AL people to have any adverse interest in her, and that relevant COI show no evidence or sign of any threats from AL people against BNP supporters in Bangladesh that it concluded that it is not satisfied that the Applicant will face any such risk upon her return to Bangladesh that her claim for non-refoulement protection failed on all applicable grounds.
11. On 24 December 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she just made bare assertions that the Board did not give her a true decision but without providing any details or particulars or elaboration as to how it did so. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.
12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate her claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.
13. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.
14. Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of Bangladesh, a decision also agreed and confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
15. In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.
16. Moreover, the Applicant has recently on 10 June 2026 in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to Bangladesh as soon as possible.
17. As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more issue for her to return to her home country, I accordingly dismiss her leave application.
Dated the 28th day of July 2026
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(Joyce Ooi)
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 to the Applicant on
28 July 2026
Banu Mst Nahida
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 28 July 2026
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 24274
Director of Immigration
Putative Respondent’s ref. no.:
QA T/C 1632/23
(formerly RBCZ 5001316/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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