JUNAKI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1106/2022

[2026] HKCFI 942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1106 OF 2022

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

2.  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 19 October 2022, 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 13 October 2022 (“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/2022/HCAL001106_2022_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to demonstrate that she was entitled to non-refoulement protection in Hong Kong on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 September 2021 (“the Director’s Decision”) and confirmed the same.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, she would be harmed or killed by members of the Awami League (“AL”) as they wanted her to join them instead of supporting the Bangladesh Nationalist Party (“BNP”), but she refused.

Withdrawal of the Leave Application

5.  Before the Leave Application was dealt with, the applicant filed an ex parte application by way of her affirmation dated 1 December 2025 to withdraw the Leave Application.

6.  As stated in the applicant’s said affirmation, she wants to go back to her home country Bangladesh because her husband was very sick. However, she did not indicate that it was safe for her to return nor her problems in her home country had been resolved.

7.  There is no evidence to show that the applicant made the withdrawal application other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

8.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

9.  Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the Leave Application.

Grounds for judicial review

10.  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).

11.  In a document titled “GROUNDS” which was annexed to her supporting affirmation dated 19 October 2022, the applicant only mentioned that she was not satisfied with the decisions of both the Director and the Board, they made many mistakes and that the adjudicator did not give her a chance to tell her final feeling.

Discussion

12.  First of all, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, it is not necessary for this court to deal with the applicant’s dissatisfaction regarding the Director’s Decision.

13.  The applicant’s assertions that she was not satisfied with the Board’s Decision and that they made many mistakes are not valid grounds for judicial review. The applicant did not state why she was not satisfied with the Board’s Decision or what mistakes the Board had made.

14.  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”.

15.  Thus, the applicant cannot rely on any general assertions without particulars as grounds for her intended judicial review.

16.  The applicant also accused the Board for not giving her a chance to tell her final feeling. However, the applicant also failed to elaborate what she wanted to tell the Board that might give her non-refoulement claim a realistic prospect of success.

17.  Thus, none of the grounds put forward by the applicant constitute a valid ground to challenge the Board’s Decision.

18.  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).

19.  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.

20.  In assessing the applicant’s appeal/petition, the Board arranged an oral hearing on 23 September 2022 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.

21.  As can be seen in paragraph 13 of the Board’s Decision, the Board found the applicant’s account to be vague and lack in detail, some were inconsistent with her account in other settings, and some simply defied logic.

22.  Although the Board agreed that the applicant’s feared ill-treatment could reach the necessary threshold of minimum severity, the Board considered that the risk of the applicant being subjected to such ill-treatment was low. The Board found that the applicant had failed to establish that she had an enemy back home and it was not satisfied that the applicant was in any danger of being harmed by anyone.

23.  Moreover, the Board found from extensive country of origin information (“COI”) that despite setbacks, the Bangladesh government had been taking practical steps to improve their effectiveness and to monitor the conduct of the Bangladeshi police. The Board found that Bangladesh could provide the applicant with adequate state protection, which would reduce or even negate the risk of the applicant being killed or subjected to ill-treatment.

24.  The Board also found internal relocation to be a viable option for the applicant to further reduce her perceived risks. The Board found Dhaka to be a suitable place for the applicant for reasons that were laid out in full in paragraph 25(d) of the Board’s Decision.

25.  Thus, the Board found that the applicant’s claim for non-refoulement protection was not substantiated on all the applicable grounds under the USM.

26.  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.

27.  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.

28.  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

29.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

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