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

CACV 352/2026, [2026] HKCA 1046

On Appeal From [2026] HKCFI 1228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 352 OF 2026

(ON APPEAL FROM HCAL NO 139 OF 2022)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the Applicant’s appeal against the decision of Deputy High Court Judge (Non-refoulement Claims) Sabrina Ho (“the Judge”) dated 23 March 2026 (“the Decision”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 10 January 2022 (“the Board’s Decision”). By that decision, the Board upheld the decision of the Director of Immigration rejecting the Applicant’s non-refoulement claim.

Background

2.  The Applicant is a national of Bangladesh. On 8 June 2021, the Applicant lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her husband. The Applicant’s claim was rejected by the Director of Immigration (“the Director”) on 14 September 2021, and the appeal against the Director’s decision was rejected by the Board on 10 January 2022. Details of the Applicant’s claim and the Board’s reasons for rejecting the Applicant’s appeal can be found in the Board’s Decision, the hyperlink to which can be found in the Form CALL-1 dated 23 March 2026.

3.  The Board found that whilst the Applicant’s husband was abusive, there was no basis for the Applicant’s fear of refoulement as the Applicant’s husband did not harm the Applicant or her children whenever she went to stay with her parents, with or without the children. She maintained contact with her husband even after coming to Hong Kong, and was not harmed by him when she went back to Bangladesh for a holiday. It was pure speculation to say that the police would not help. In any event, internal relocation was a viable option even if the Applicant returned to Bangladesh.

4.  The Applicant’s application for leave to apply for judicial review was refused by the Judge on 23 March 2026. Details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1. The Judge noted the Board’s finding of facts and that internal relocation was an option, and that there was no error of law or procedural irregularity in the Board’s Decision.

Grounds of Appeal

5.  In the Notice of Appeal filed on 2 April 2026, the Applicant stated that:

“The Honourable High Court Judge Have not Shown Any Personal opinion. She just copy from the Adjudicator of [TCAB] And [NRC]. She might failed to show Any caos for cancel my leave. Although I respect to the Honourable Judge Decision, I submit An Affirmation/Exhibit with this Appeal.” (sic)

6.  In the Affirmation filed on 2 April 2026, apart from repeating what has been said in the Notice of Appeal, the Applicant said that one of her brothers was shot dead by her husband’s gang members. She annexed to the Affirmation a copy of the Form CALL-1, a copy of her divorce certificate dating from 2016, and a set of photos said to show the shooting of her brother.

7.  The Applicant failed to comply with the directions given by the Registrar of Civil Appeals to lodge written submissions in support of her appeal on or before 19 May 2026. Accordingly, the Applicant is deemed to have waived the right to have an oral hearing of the appeal and to have elected to have the appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

Legal Principles

8.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at [14(6)]).

9.  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 are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

Discussion and Disposition

10.  On the evidence before the Board, the Board was entitled to make its finding of fact that the case was simply one of domestic violence and that the Applicant did not get harmed by her husband when she stayed with her parents. Furthermore, the Board found that internal relocation was a viable option. The Judge acknowledged the Board’s findings and did not discern any error in the Board’s Decision.

11.  The Applicant’s Notice of Appeal complained that the Judge copied the Board’s adjudication, but in fact the Judge reviewed the Board’s Decision and explained why, on the basis of the Board’s findings, there was no arguable risk of the proscribed harms.

12.  As regards the Affirmation, it is trite law that if the Applicant is to adduce new evidence in this appeal, she must satisfy the three conditions established in Ladd v Marshall [1954] 1 WLR 1489, namely (1) the new evidence could not have been obtained at the hearing below with reasonable diligence, (2) the new evidence would significantly influence the outcome of the case if believed, and (3) the new evidence must be apparently credible, though not necessarily incontrovertible. Insofar as the Affirmation described the Applicant’s husband as her ex-husband and exhibited a divorce certificate dating from 2016, these were matters which could have been produced earlier. In any event they contradict and undermine the Applicant’s case that she is at risk of violence from her husband, since she is no longer married to him. As regards the photos, whilst the Applicant claims that the police recovered the body, there was a post mortem, and there was a burial, there was no documentary evidence (such as a police report, post mortem report or burial records) to show that the body was the Applicant’s brother or that the killing had anything to do with the Applicant’s ex-husband. It is not apparently credible evidence and in any event does not significantly influence the outcome of the case, given that the Board found that internal relocation would be a viable option. The evidence fails to satisfy the Ladd v Marshall requirements, and we refuse leave to adduce it.

13.  The Applicant has therefore failed to identify or show any error in the Decision or otherwise raise any viable ground of appeal against it.

14.  The Applicant’s appeal has no merit, and is dismissed with no order as to costs.