Akther Salman Ahad (A Minor) By Akther Parvin, His Next Friend v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1262/2025 on BabelCite. This High Court CFI judgment was delivered on 1 April 2026.
1. By way of Form 86 dated and filed on 3 June 2025, Akther Salman Ahad (a minor), represented by his mother Akther Parvin (“the Mother”) as his next friend, 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 16 May 2025 (“the Board’s Decision”).
Cited by 1 case · Cites 8 cases
|
HCAL 1262/2025 [2026] HKCFI 1902 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1262 OF 2025
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 3 June 2025, Akther Salman Ahad (a minor), represented by his mother Akther Parvin (“the Mother”) as his next friend, 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 16 May 2025 (“the Board’s Decision”). 2.In Form 86, the Mother named herself as the 1st applicant and Akther Salman Ahad as the 2nd applicant. However, the Mother is in fact the applicant of a separate leave application in HCAL 380/2020 (which was heard together with the Leave Application). Hence, the Mother should not be an applicant together with Akther Salman Ahad in the Leave Application. The Board’s Decision was only concerning Akther Salman Ahad’s non-refoulement claim and not the Mother’s. The Board’s Decision can be viewed in the following hyperlink:- 3.The Board rejected Akther Salman Ahad’s non-refoulement claim for protection in Hong Kong on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed Akther Salman Ahad’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 March 2025, which rejected his non-refoulement claim, and confirmed the same. Amendments 4.As aforesaid, Akther Salman Ahad should be the sole applicant in the Leave Application. His name should be stated in Form 86 as “Akther Salman Ahad (a minor) by Akther Parvin, his next friend”. 5.Thus, on this court’s own motion, “Akther Parvin” is deleted as the 1st applicant, the 2nd applicant is changed to be the sole applicant and his name is amended to “Akther Salman Ahad (a minor) by Akther Parvin, his next friend”. 6.In Form 86, the Board was stated to be the putative interested party, when the Director should be the putative interested party. Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”. Legal representation of the applicant 7.The applicant is a minor born on 4 February 2024 in Hong Kong and is represented by the Mother in the Leave Application. 8.The Mother applied for legal aid for the applicant but his application was refused by the Director of Legal Aid on 2 December 2025. 9.At the hearing on 3 February 2026, the Mother confirmed that she would not engage a private lawyer to represent the applicant. 10.As the applicant was legally represented before the Director and no new evidence would be advanced in the Leave Application, this Court considered that the lack of legal representation in the Leave Application was a mere irregularity and it would not prejudice the applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application. The applicant’s case 11.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. 12.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be harmed or killed by the Mother’s husband named Abdul Kayem (“AK”), who was not the applicant’s natural father, and also by the Councillor of the Village Council named Mobarak, who was a member of the Awami League. The Mother was also worried that the applicant, being an illegitimate child, would be discriminated, ill-treated or even killed for being not accepted in the Muslim society. The Mother also claimed that the applicant was a stateless child. Oral hearing 13.The Mother is a non-refoulement claimant herself and her own application for leave to apply for judicial review (HCAL 380/2020) was heard together with the Leave Application on 3 February 2026. 14.When this court asked the Mother for the applicant’s grounds for the intended judicial review, the Mother said that the applicant and his elder brother were both born out of wedlock in Hong Kong. The applicant’s elder brother was also a non-refoulement claimant. The society in Bangladesh was different from Hong Kong, and would not accept illegitimate children. If the applicant, his elder brother and the Mother were returned to Bangladesh, they could be killed. 15.The Mother added that she and both her children born in Hong Kong, including the applicant, needed medical treatments. The applicant would not be able to get medical treatments in Bangladesh and he could not go to school there. 16.However, the Mother said that she could say nothing regarding the Board’s Decision as she did not know anything about the law or non-refoulement claim. She only wanted to stay in Hong Kong with the applicant and his elder brother for their safety, as the situation in Bangladesh was very bad and it was not safe there. Grounds for judicial review 17.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). 18.The applicant’s Form 86 and the supporting affirmation dated 3 June 2025 were made by the Mother. The Mother did not advance any grounds for the applicant’s intended judicial review in Form 86, nor in the supporting affirmation. 19.As aforesaid, at the oral hearing before this court, the Mother repeated the possible discrimination that the applicant would face upon refoulement, and added that she wanted to remain in Hong Kong with the applicant and the applicant’s elder brother for medical treatments, which they could not receive in Bangladesh. However, these matters could not amount to any valid grounds for the applicant’s intended judicial review. Discussion 20.First of all, the alleged discrimination that the applicant might face upon refoulement had been assessed by the Board. The Board had also explored the applicant’s rights of education, medical care and civil relations upon refoulement in the Board’s Decision and found nothing to suggest that the applicant’s rights would be deprived of for any reasons. The Mother’s concerns about the lack of medical care and education for the applicant had already been assessed by the Board. 21.If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review, save when the Board’s findings were erroneous on point of law or irrational. 22.This court finds that none of the assertions made by the Mother representing the applicant at the oral hearing constituted a valid ground to challenge the Board’s Decision. 23.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). 24.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. 25.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 12 May 2025. As the applicant was only slightly more than one year old when his claim was placed before the Board, the Board had issued a letter to the Duty Lawyer Service (“DLS”) dated 28 March 2025 for their consideration of the need of providing legal representation to the applicant in his appeal. On 10 April 2025, the DLS replied that no legal representation would be granted to the applicant after having studied the case files and the recent judgments[1] of the Court of Appeal. Thus, the Board allowed the Mother to represent the applicant at the Board’s hearing. 26.As can be seen from the Board’s Decision, the Board was fully aware of its duty to assess the applicant’s claim separately from the Mother’s claim and to take into consideration any child-specific risks of the applicant. 27.After due consideration of the law and all the evidence, the Board found that there was not any threat of risk of harm against the applicant. The Board’s observation that formed the basis of its findings were laid out in paragraph 31 of the Board’s Decision. 28.The Mother’s enemies were not state actors. There were no substantial grounds to believe that any potential acts against the applicant would be inflicted by, at the instigation of or with the consent or acquiescence of government officials. 29.As to the assessment of child-specific risks of the applicant, the Board did not accept and there was no indication that the applicant would be subjected to any child-specific risk of harm which might give rise or amount to a situation of torture claim or persecution of any form or might constitute any of the grounds under the USM. The applicant was born to a Pakistani father and a Bangladeshi mother. As admitted by the Mother at the Board’s hearing, the applicant could register with Bangladeshi nationality. There was no worry that the applicant might not be accepted by the Bangladeshi authorities and there was nothing to substantiate that he would become stateless. 30.The Board also explored in length the viability of internal relocation for the applicant and addressed the Mother’s claim that internal relocation was not possible in paragraphs 37 to 41 of the Board’s Decision. The Board found that the Mother’s enemies were not so powerful as to be able to locate the applicant anywhere in Bangladesh, even if they had the intention to do so. 31.The Board also found that there was objective country of origin information (“COI”) showing that the Bangladeshi government recognized the rights of children and provided welfare services for them. Children could register citizenship and enjoy welfare in Bangladesh. Moreover, a number of government and non-government agencies were providing support to children who were victims of domestic violence. There was also legislation to criminalize domestic violence and all other forms of violence, harassment and discrimination against children. Efforts had also been made in implementing the legislation to protect domestic violence victims. 32.The Board further concluded in no ambiguous terms that if it were necessary for the applicant to get out of the place where the Mother used to live and to keep away from AK and/or Mobarak, he might relocate with the Mother, who was young with some education and work experience, to other places in Bangladesh. It would not be unreasonable or unduly harsh for the Mother to relocate with the applicant to other places within the country. 33.The finding of facts, including assessment of COI and risks of harm, was solely within the ambit of the Board. The Board did deal with all the applicant’s alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM. The Board was entitled to come to its conclusion. 34.This court finds nothing wrong or unreasonable in the way the Board reached its conclusion based on the evidence available to the Board. 35.As aforesaid, at the oral hearing before this court, the Mother on behalf of the applicant was unable to provide further details to show that the Board had committed any errors of law or there was any procedural unfairness or irrationality in the Board’s Decision. 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 Leave Application is dismissed.
Dated the 1st day of April 2026
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
| |||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case