Case Document

100%Judiciary

HCAL 680/2023

[2026] HKCFI 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 680 of 2023

BETWEEN
	Akhtar Musammat Sajna	1^st Applicant
	Haque Md Ismail	2^nd Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1. Leave for the Applicants to apply for Judicial Review be refused; and

2. Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings be treated as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, her son, born in Hong Kong in June 2016, a minor (“the son”). They are illegal immigrants.

2.The applicants jointly applied for leave to apply for judicial review of the Decision dated 25 June 2018 of the Torture Claims Appeal Board (“the Board’s 1^st Decision”) dismissing their appeal against the Director’s Decision, which rejected their non-refoulement claim in action HCAL 1428 of 2018. The Court granted leave to the applicants.

3.By consent, the Board’s 1^st Decision was quashed and the applicants’ appeal was remitted to the Board of different constitution for re-assessment.

4.By Decision dated 30 March 2023 (“the Board’s 2^nd Decision”), the Board dismissed their appeal and confirmed the Director’s Decision as described below.

5.In this action, by Form 86, the applicants applied to the court for leave for judicial review of the Board’s 2^nd Decision.

6.The Court fixed a hearing on 16 March 2026 for this case to be heard together with another case HCAL 2448 of 2025 relating to the mother and her daughter. The mother and her children were absent at the hearing.

The applicants

7.The applicants are nationals of Bangladesh. The son’s claim depends on the facts of the mother’s claim. The mother is an illegal immigrant.

8.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by her paternal uncle and 2 cousins for political disputes. The mother alleged that if she returns to Bangladesh with the son, the son will not get proper education as she cannot move around freely in Bangladesh. [64] She also said that she would be subjected to higher risk of rape and other kinds of gender-based violence without family or social support. [66]

9.Details of the facts are set out in the Board’s 2^nd Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000680_2023_files/the_Board's_Decision.pdf

The Director’s Decision

10.The Director considered the applicants’ claims in relation to the following risks:

a.   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.By way of the Director’s Decision dated 9 August 2017 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s 2^nd Decision

12.On 19 September 2022, the Board conducted an oral hearing for their appeals. The applicants and the Director were respectively legally represented. The mother had given evidence and answered the Board’s questions.

13.Having considered the evidence, the Board made the findings below.

(1)   The mother is not targeted by the Awami League (“AL”) people. [84]

(2)   The mother was never harmed by the AL people and there was no evidence that she will face any genuine risk of being subjected to ill-treatment if she returns to Bangladesh. [139] & [141]

(3)   There was no evidence that the state was involved. [151]

(4)   The state will provide protection for the mother and the son. [122]

(5)   There will be free child welfare and education in Bangladesh. [129]

(6)   There is no evidence that child kidnapping is personal to the son. [130]

14.For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

15.The applicants filed Form 86 on 9 May 2023 for leave to apply for judicial review of the Board’s 2^nd Decision.

16.In support of their application, the mother said that this Board was wrong again as it did not consider her life and the translator did not help her much.

DISCUSSION

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.The Court will bear in mind that the Board’s 2^nd Decision should be examined with rigorous examination and anxious scrutiny.

19.The mother’s reasons are bare allegations without any evidence in support. The applicants were legally represented. The Board had fully considered the applicants’ cases, with separation consideration for the son.

20.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

21.I refuse to grant leave to the applicants to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss their application.

22.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the son’s application a nullity.

Dated the 15^th day of April 2026

(Allen LEE)
for Registrar, High Court

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 Applicants: If leave has been granted, the Applicants or the Applicants’ solicitors must:
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)).		Sent to the Applicants on 15/4/2026 Akhtar Musammat Sajna Haque Md Ismail Applicant’s ref. no: Nil.		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 15/4/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8203, 8204 (R) Director of Immigration Putative Interested Party’s ref. no.: RBCL 3164/15 (CZ), RBCL 3707/16 (CZ) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)