AKTER MST BABY v. TORTURE CLAIMS APPEAL BOARD

HCAL 996/2021

[2026] HKCFI 2625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 996 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

2.   The applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

3.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 14 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 19 December 2019 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000996_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 11 January 2019, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named “The torture claims appeal Board. NON-Refoulment Claims Petition office” as the putative respondents but did not name any putative interested party.

4.  In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

Late application

7.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

8.  However, the applicant filed Form 86 on 14 July 2021, which was more than 18 months after the Board’s Decision (made on 19 December 2019).  The applicant was hence late for more than 15 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

9.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(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.

10.  The applicant did not explicitly make an application for extension of time when she filed the Leave Application.  However, she did attach a handwritten letter dated 14 July 2021 to her supporting affirmation of the same date, which explained that she lost her immigration paper the year before and she got a police report from the police station.  She also mentioned that CIC did not give her a Form 8 immigration paper until after more than a year.  Without the original paper, she could not apply for leave to apply for judicial review. She could only make the application when she was issued with an original one. The said letter is therefore treated as the applicant’s application for an extension of time to file the Leave Application.

11.  At the oral hearing before this court on 23 April 2026, the applicant explained that the “immigration paper” she referred to in her said letter was the recognizance document and she lost it sometime in 2018.  She only received a new one after 3 years.  When this court asked the applicant to produce her current recognizance document to this court, it showed that the current one was issued on 27 May 2021 and the last one was issued on 21 March 2019.  Hence, even assuming that she did lose her old recognizance in 2018, she should have another one issued to her on 21 March 2019.  The applicant then explained that she only received a copy of the recognizance in 2019, and she could not use the copy to file the Leave Application.

12.  The applicant’s explanation seemed implausible as there was no reason for the Immigration Department to give her a copy instead of issuing an original one on 21 March 2019 if she had indeed lost the old one in 2018.  Thus, this court is not prepared to accept the explanation as a reasonable excuse for her delay in filing the Leave Application.  Moreover, there is no merit of the intended judicial review at all as discussed below.  Thus, this court is not prepared to extend the time for the applicant to file the Leave Application.

13.  The Leave Application can therefore be dismissed for being made out of time alone.  Nevertheless, for the sake of completeness, this court will discuss the merits of the Leave Application below.

The applicant’s case

14.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

15.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, she would be harmed or even killed by her former husband due to his violent character and a political dispute with him, as he was a member of the Awami League while she was a supporter of the Bangladesh Nationalist Party.

Oral hearing

16.  The applicant requested for an oral hearing of the Leave Application.  Her case was heard on 23 April 2026.

17.  At the hearing, when this court asked the applicant to elaborate on the grounds of her intended judicial review that were stated in her supporting affirmation, she merely said that she did not want to add anything and she really had problems in going back to her country.

Grounds for judicial review

18.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

19.  The applicant did not state any grounds for her intended judicial review in her Form 86.  In her supporting affirmation dated 14 July 2021, the applicant stated that the Board’s Decision was unreasonable in that it failed to consider all the matters raised in her claim and/or give adequate reasons for her. 

20.  As mentioned, the applicant did not elaborate on the said grounds at the oral hearing before this court.

Discussion

21.  First of all, the Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 

22.  Thus, the applicant’s general allegations that the Board’s Decision was unreasonable in that it failed to consider all the matters raised in her claim and/or give adequate reasons for her cannot help the applicant at all.

23.  The applicant’s problems in her country were duly assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

24.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

25.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

26.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 4 July 2019.  The applicant was present and was given the chance to present her case to the Board in person. 

27.  Contrary to the applicant’s assertion in her affirmation that the Board gave inadequate reasons for its decision, the Board had provided in paragraphs 49 to 74 of the Board’s Decision a very detailed analysis of the applicant’s claim and the reasons why it concluded that the applicant’s evidence was neither reliable nor credible, and the applicant was not a witness of truth.

28.  In gist, the Board found the evidence of the applicant with regards to the timeline and chronology of the applicant’s account, the alleged acid attack on her, the alleged divorce by her former husband and the alleged violent behavior of her former husband, were significantly inconsistent.  The applicant’s failure to mention two significant incidents, namely (1) the former husband’s kidnap of their daughter for want of money from the applicant, which happened only in the same year when the applicant completed her Non-refoulement Claim Form; and (2) the former husband had gone to find her a few times when she was being trained in Dhaka to work as a domestic helper, all seriously undermined the credibility of her claims.

29.  Moreover, the applicant failed to mention anything about her alleged political difference with her former husband until the Board had specifically raised this issue at the hearing.  The applicant even declined to provide further evidence to the Board about her political involvement and in what ways that contributed to the conflict between her and her former husband.

30.  Based on country of origin information (“COI”), the Board found that while it was possible on the balance of probabilities that the applicant married a man in Bangladesh with whom she had a child in 2010, that he might have been physically abusive during their marriage and that they subsequently divorced at some stage, the confused and inconsistent nature of the applicant’s claims led the Board to find that it could not and did not accept any other aspects of details of her claims.

31.  In view of the Board’s findings and in the absence of any credible evidence regarding any ongoing risk or threat, the Board did not accept that the applicant faced a real risk of any of the proscribed forms of harm under the USM at the hands of her former husband.

32.  The Board did not consider availability of state protection and viability of internal relocation.  However, as the Board had found that the applicant was not at risk of harm at the hands of her former husband if she were to return to Bangladesh and it was the applicant’s only source of fear, it is not necessary for the Board to consider the availability of state protection.

33.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

34.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

35.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

36.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

37.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

38.  For reasons aforesaid, the applicant’s application for extension of time to file the Leave Application is refused.  The Leave Application is dismissed for being made out of time and also for lack of merits.

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