MOHOSANA MST v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1351/2020

[2025] HKCFI 3585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1351 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended on the court’s own motion as follows:-

a.  the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the Putative Respondent; and

b.  the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 30 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 26 June 2020 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named both the Board and the Director of Immigration (the “Director”) as the proposed respondents. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 25 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of her claim and the arguments she advanced had already been set out in detail in the Board’s Decision. A hyperlink to the Board’s Decision is included below[1] for reference. The gist of the Applicant’s claim is that, if she were to return to Bangladesh, she would be ill-treated or killed by her husband Mozammel and other family members as they were connected with a powerful political party called the Awami League (“AL”). She also fears that she would be arrested by the Bangladesh authorities on account of a false charge against her for the murder of Mozammel’s second wife

Discussion

5.  It is trite that:-

(1)  Determination of the merits of a non-refoulement claim is essentially within the remit of 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.

(2)  An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J (as he was then) at §142.

6.  In the Form 86, the Applicant did not advance any ground in support of the Leave Application. In her supporting affirmation, the Applicant merely repeated her case that she would face danger if she were to be deported back to her home country.

7.  Notwithstanding the Applicant’s failure to identify a reviewable ground, I have scrutinised the Board’s Decision anxiously. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account irrelevant matters. In particular, it is noted that:-

(1)  Having considered the Applicant’s evidence in detail (§§7-54) and relevant Country of Origin information (“COI”), the Board was entitled to reject the Applicant’s factual account on the basis of that (amongst others) there were significant irreconcilable inconsistencies in key aspects of her evidence (§§52, 81-83, 86-87). The Applicant’s claim that she had been charged for murder of Mozammel’s second wife was completely based on hearsay and the threat from the second wife’s family is vague, ambiguous and speculative (§85). I see no basis to intervene with the Board’s factual finding that the Applicant’s claim of fear of ill-treatment in Bangladesh to be groundless and fanciful.

(2)  The Board was also entitled to find that adequate state protection was available having regard to relevant COI (§§71-73, 94-99).

(3)  It was also within the range of decisions of a reasonable Board to find that internal relocation alternatives were available in the circumstances (§95, 102-105). On her own evidence, the Applicant is able-bodied with working experience as a school teacher and also a domestic helper (§§27, 36)

8.  The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.

9.  At the Hearing, the Applicant told me that the problem in Bangladesh had since worsened and it was not safe for women there. There was no ruling party and the situation was chaotic. I do not see how this can assist the Applicant’s case:-

(1)  The alleged developments in the political situation took place subsequent to the Board’s Decision.

(2)  In any event, the Applicant has failed to properly adduce affirmation evidence with reference to reliable COI. This court is not prepared to accept the bare assertion of the Applicant without any credible corroborating evidence.

10.  In short, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.

Conclusion

11.  In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be 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