AKTER BITHI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1112/2024

[2026] HKCFI 4596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1112 OF 2024

Application for Leave to Apply for Judicial Review

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

Following:

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

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 17 April 2023 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Bangladesh who last arrived in Hong Kong on 31 July 2013 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 31 July 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 28 November 2013, she did not depart and instead overstayed, and was arrested by police on 25 February 2014. 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 over their monetary dispute. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Kali, Bhulta, Rupganj, Narayanganj, Bangladesh where her father was a member and local leader of the political party Awami League (“AL”).

3.  In 2012 her father started to have some monetary dispute with some of his fellow AL members that led them to demand the return of their money by constantly threatening and harassing her father and his family including the Applicant.

4.  As a result of the constant harassments and intimidations, the Applicant decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she did in June 2013 when she arrived in Hong Kong to start her employment.

5.  However, after her last employment was prematurely terminated in November 2013, she 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 13 March 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 21 May 2019 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”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her father’s enemies 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 her father’s enemies to seriously harm or kill her other than to press her father to repay money to them, that in any event it was a private monetary dispute between her father and his fellow AL people only without 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 159 million people spread across a vast territory of more than 130,000 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 or Chittagong where it would be difficult if not impossible for anyone to locate her.

8.  On 31 May 2019 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 4 June 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 17 April 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted and rejected the credibility of her claim of fear of harm from her father’s enemies that caused her to overstay in Hong Kong to seek protection, that even if her account of events as regard her father and his enemies in Bangladesh were true that there was no reliable evidence of any threats directed against her or any real intention of her father’s enemies to seriously harm or kill her other than to press her father to repay them their money, and that in any event it was a private monetary dispute between her father and his fellow AL members only without any official involvement that state or police protection would be available to the Applicant upon her return to Bangladesh if resorted to 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.

10.  On 12 July 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 stated that she is not satisfied with the decision but without putting forth any proper ground for her intended challenge.

11.  By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for her to file her Form 86 fell on 17 July 2023, the Applicant was therefore some 12 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of 12 months must be considered as extremely substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 17 April 2023 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

14.  As for the merits, if any, of her intended application, as noted above that the Applicant has failed to put forward any proper ground for her intended challenge, 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 and elaborated by the Applicant, I do not find any merits in her intended application either.

15.  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.

16.  In the Applicant’s case, the Board rejected her claim 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.

17.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  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.

19.  Moreover, the Applicant has recently on 21 July 2026 filed an Affirmation requesting to withdraw her application as her problem in her home country has been resolved that it is now safe for her to return to Bangladesh.

20.  In the premises, 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 safe for her to return to her home country, I accordingly dismiss her leave 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