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HCAL 3631/2019
[2025] HKCFI 2518
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3631 of 2019
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BETWEEN
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Bagum Sefali |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
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 (Non-refoulement Claims) Teresa Wu:
(1) Form 86 be amended, naming the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration 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 dated 5 December 2019, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) dated 26 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 27 June 2019 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).
2. On my own motion, I have amended Form 86, correctly naming only the Direction rather than the Board as the proposed interested party.
Background
3. The material facts of this case, including the Applicant’s personal background, the incidents alleged to show that she would be harmed or killed by her husband in Bangladesh, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision. It is not necessary to repeat them all over again. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I will also adopt the Board’s abbreviations and descriptions herein.
Discussion
4. I have considered the Board’s Decision with rigorous examination and anxious scrutiny, applying an enhanced standard as required by law owing to the seriousness of the issues at hand. I am satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the Grounds under the USM, and observed a very high standard of fairness.
5. The Applicant claimed that she would be harmed or killed by her husband, who had links with the ruling Awami League (AL) party. She also claimed, during the hearing before the Board, that her son had committed a murder in Bangladesh and absconded. According to the Applicant, she would be blamed and harmed in an attempt to locate his whereabouts.
6. After going through the Written representation, the NCF, the record of interview, the Director’s Decision, the Notice of Appeal/Petition, the Skeleton Submissions for the Director, the Hearing bundle containing additional information, the Applicant’s oral evidence given at the hearing, and the additional documents provided, and applying the relevant law and legal principles relating to the issues and the Grounds, the Board found as follows:
(1) The Applicant’s evidence was problematic and raised concerns that her claims of domestic violence at the hands of her former husband in Bangladesh had been manufactured.
(2) The above said, it was accepted that the Applicant had experienced domestic violence at the hands of her husband until 2009, culminating in their divorce, and the abusive nature of their relationship was at least one of the reasons she departed Bangladesh for Dubai where she remained working as a domestic helper for approximately four years. Her husband was violent and the scars on her forehead were caused during one of his violent assaults on her.
(3) However, the Board did not accept that the Applicant had any interaction with her former husband when she returned to Bangladesh in late 2012. At that point, she had divorced from him for four years. The Board did not accept that he went to her sister’s house, assaulted her and tried to force her to return to his home. The Board considered it evident that the Applicant returned to Bangladesh, stayed with her sister for some time, and subsequently undertook training to enable her to undertake employment as a domestic helper in Hong Kong. The Board did not accept that she departed Bangladesh for Hong Kong in 2013 because she feared harm from her former husband. The Board considered her only purpose in coming to Hong Kong at that time was to undertake employment.
(4) Accordingly, the Board did not accept that the Applicant had any genuine fears for her safety at the hands of her former husband, nor he would use any connections within the Awami League to find or harm her upon her return to Bangladesh. The Board considered that the Applicant’s evidence indicated the relationship between herself and her former husband was non-existent, and he had no intention of pursuing or harming her upon her return to Bangladesh.
(5) The Applicant had raised an entirely new claim at the hearing regarding her son’s involvement in a murder. The Board was not satisfied that the Applicant would be in any way implicated in this matter or the police, neighbours, relatives of the deceased young man, or any other persons would pursue or harm her in an attempt to either punish her for her son’s actions or in an attempt to locate his whereabouts.
7. The Board was not satisfied, having considered all the evidence available, that there were substantial or strong grounds, or a real chance or a real risk for believing that the Applicant would suffer harm amounting to torture, CIDTP/torture, a risk to her life or persecution upon her return to Bangladesh. The Board therefore rejected the Applicant’s claim based on Torture Risk, BOR 3 Risk, BOR 2 Risk and Persecution Risk.
8. The assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation was primarily within the province of the Board. It was entitled to make evaluations based on the evidence available and to decide the weight to be given to them. The Applicant has not shown any error of law, procedural unfairness, or irrationality in the Board’s Decision for the Court to intervene by way of judicial review. It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal (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, etc.).
9. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).
Conclusion
10. I therefore make an order that Form 86 be amended as described above and the Leave Application be dismissed.
Dated the 4th day of July 2025
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(Allen 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 the Applicant’s 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 4/7/2025
Bagum Sefali
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 4/7/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16060/19/7/26/B2056
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 423/19 (Formerly RBCZ 10297/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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