Sohel Labib, A Minor, By Next Friend and Legal Guardian, Akter Laboni v. Torture Claims Appeal Board

HCAL 685/2020

[2026] HKCFI 2273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 685 of 2020

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:

1.   Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 17 March 2020.

2.   The applicant is directed to issue an originating summons for the intended judicial review on or before 6 May 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 17 April 2020, Akter Laboni and Sohel Labib applied for leave to apply for judicial review in respect of a decision which was described as follows:

“The decision made on unknown date but notice on of 21 May 2019, the decision dated 17 March 2020 Adjudicator, Torture Claims Appeal Board.”

2.Akter Laboni (“the Mother”) is the mother of Sohel Labib.  In the original Form 86, the Mother named herself as the 1^st applicant and Sohel Labib as the 2^nd applicant.  The Mother also filed the supporting affirmation dated 17 April 2020 in her own name.

3.Subsequently, the Director of Legal Aid issued a Legal Aid Certificate to the Mother acting for Sohel Labib on 27 October 2025.

4.By way of an ex-parte Summons dated 26 February 2026, Sohel Labib, through his solicitors, applied for leave to amend Form 86.  At the oral hearing of the Leave Application on 9 March 2026, this court granted leave to Sohel Labib to amend Form 86 as per the draft submitted to this court.  The Mother confirmed that her own case had already been rejected in HCAL 365/2019 and hence she should not be an applicant in the Leave Application.  Thus, her son, Sohel Labib, should be the sole applicant in the Leave Application.

5.By way of another ex-parte Summons of the same date, Sohel Labib, through his solicitors, applied for leave to adduce the exhibits annexed to the Summons.  This court granted leave to Sohel Labib to adduce the said exhibits at the same hearing on 9 March 2026.

6.The amended Form 86 was filed on 12 March 2026.  “SOHEL LABIB, a minor, by next friend and legal guardian, AKTER LABONI” was named as the sole applicant (“the applicant”) in the Leave Application.  The decision in respect of which relief is sought in the Leave Application was amended to “The Decision of the Torture Claims Appeal Board dated 17 March 2020” (“the Board’s Decision”), which dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 May 2019 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

7.The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000685_2020_files/the_Board's_Decision.pdf

8.The Board decided that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board affirmed the Director’s Decision.

The applicant’s case

9.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.

10.In sum, the applicant claimed for non-refoulement protection because if refouled to Bangladesh, he would be harmed by the Awami League (“the AL”) as both his mother and his father had political conflicts with members of the AL in the past.

11.The applicant’s parents are both Bangladeshi nationals.  The Mother’s non-refoulement claim was rejected by the Director and on appeal by the Board on 25 January 2018 and 28 January 2019 respectively.  Similarly, his father’s non-refoulement claim was rejected by the Director and on appeal by the Board on 7 September 2018 and 15 August 2019 respectively.

Oral hearing

12.At the oral hearing of the Leave Application on 9 March 2026, counsel for the applicant submitted that the Board did not consider child-specific factors for the applicant as follows:-

(1)   The applicant was born out of wedlock;

(2)   The applicant’s family including the Mother were Muslims;

(3)   The Mother had committed adultery and might face punishment by the Muslim society, including stoned to death, which would affect the applicant;

(4)   The applicant is an illegitimate child and would face problems in Bangladesh, and as a Muslim, he might face discrimination which would amount to persecution;

(5)   Whether the applicant could relocate in his own country;

(6)   Whether the Bangladeshi government would provide support to illegitimate child like the applicant;

(7)   The societal attitude of the local society and the government policy in respect of the applicant; and

(8)   As the applicant was born in Hong Kong and had never been to Bangladesh, whether he would suffer serious harm psychologically.

Grounds for judicial review

13.The applicants are 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).

14.Apart from his oral submissions made at the oral hearing as aforesaid, counsel for the applicant, in his written skeleton argument, relied on the principles laid down in Fabio Arlyn Timogan[1] and Re Jasvir Singh[2], in that the dismissal of a parent’s claim should not automatically lead to the dismissal of the minor’s claim without separate consideration of the minor’s personal circumstances, and that the Board should consider if there are underlying matters which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation.

15.Counsel submitted that the Board’s Decision was illegal, procedurally unfair and/or Wednesbury unreasonable because:-

(1)   The Board failed to separately consider the non-refoulement claim of the applicant and effectively regarded it and the claims of his parents as one composite claim;

(2)   The Board failed to refer the applicant to Duty Lawyer Service (or any other free legal representation) for legal assistance;

(3)   The Board failed to apply the relevant legal principles applicable to non-refoulement claims made by children;

(4)   The Board failed to make sufficient enquiry; and/or

(5)   The Board failed to give any or any adequate reasons for rejecting the applicant’s non-refoulement claim, even assuming that he had considered it separately.

Discussion

16.As can be seen from paragraphs 16 to 25 of the Board’s Decision, the Board indeed only assessed the applicant’s risks arising from the Mother’s and his father’s claim for non-refoulement protection and concluded that since neither the Mother nor his father faced a real chance of harm in Bangladesh, the applicant did not face a real chance of harm in Bangladesh from the AL members or supporters, or any other persons.

17.Despite the fact that the Board was clearly aware of the applicant’s age, parentage and personal background as a child born out of wedlock, the Board had not considered or considered adequately the difficulties the applicant might face upon refoulement, which were specific to his personal circumstances.

18.Thus, the Board has clearly committed an error of law when it failed to follow the Fabio principles to give separate consideration to the applicant’s claim and his personal circumstances in the Board’s Decision.

19.This error alone is sufficient enough for the applicant’s intended judicial review to be reasonably arguable, and it is therefore not necessary for this court to discuss all the other grounds advanced by counsel for the applicant at this stage.

20.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 it is reasonably arguable that the Board had committed at least an error of law in its assessment of the applicant’s claim as aforesaid.  Hence, leave should be granted to the applicant to proceed with the intended judicial review.

Conclusion

21.For reasons aforesaid, leave is granted to the applicant to apply for judicial review in respect of the Board’s Decision.

22.The applicant is directed to issue an originating summons for the intended judicial review on or before 6 May 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Dated the 22^nd 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