SUFIA KHATUN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2267/2023

[2026] HKCFI 2795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2267 OF 2023

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Bangladesh who arrived in Hong Kong on 28 June 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract 28 February 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 12 September 2014, she did not depart and instead overstayed, and more than 7 years later on 15 November 2021 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Bangladesh she would be harmed or killed by certain local supporters of the political party Awami League (“AL”) as she 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 Village Habishpur, District Narshingdi, Bangladesh.  After leaving school she married her husband and raised a family with 4 children in her home village, and supported BNP regularly attended their local meetings and activities.

3.  In 2014 some local AL supporters started to demand her and her husband to join AL, and when they refused, they then harassed and threatened them, and after several occasions when they were beaten by those AL supporters, the Applicant became fearful for her life and made arrangements to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she subsequently did on 28 June 2014 when she departed Bangladesh for Hong Kong to start her employment as a foreign domestic helper, but after her employment was prematurely terminated on 12 September 2014, she was afraid to return to Bangladesh and therefore overstayed in Hong Kong, and more than 7 years later on 15 November 2021 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non‑refoulement Claim Form (“NCF”) on 17 January 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 23 May 2023 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local AL supporters upon her return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her given that she was just an ordinary BNP supporter without holding any official post in the party, 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”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 167 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 Dhaka where it would be difficult if not impossible for those local AL supporters to locate her.

6.  On 30 May 2023 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 14 November 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 7 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  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 any 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 more than 7 years later that it found that she had failed to establish any risk of being harmed by anyone upon her return to Bangladesh, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if needed as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.    

8.  On 18 December 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)   That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)   That the Board’s decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(3)   That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(4)   That the Board failed to meet the greater care and duty owed to a self‑represented claimant;

(5)   That the Adjudicator had relied on cases which were outdated considering the dramatic changes in Bangladesh that had resulted in groundless speculations in its decision.

9.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what COI that the Board had relied on were outdated.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

10.  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 his 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.

11.  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.

12.  Furthermore, the fact is that it has also been correctly 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 part 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.

13.  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.

14.  Moreover, the Applicant at the hearing of her application requested to withdraw her application as her problem in her home country has been resolved and that BNP has since become the ruling party that it is now safe for her to return to Bangladesh.

15.  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 that it is now safe for her to return to her home country, I therefore refuse to grant leave and accordingly dismiss her application.

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