Khatun Sathi and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1177/2022, HCAL 1809/2024 and HCAL 23/2026

(Consolidated)

[2026] HKCFI 2043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NOS. 1177 OF 2022, 1809 OF 2024 and 23 OF 2026

(Consolidated pursuant to the Order of
Deputy High Court Judge K.W. Lung dated 18 May 2026)

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 oral submissions by the Applicants 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 and 3^rd Applicants’ application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The 3 applications are consolidated to be heard together as the applicants are members of a family.

2.The 1^st applicant is the mother (“the mother”) acting for herself and as the next friend of the 2^nd applicant, her elder daughter, born on 13 July 2023 and the 3^rd applicant, her younger daughter, born on 26 February 2025. The 2^nd and the 3^rd applicants are minors.

3.In HCAL 1177 of 2022, the mother applied for leave to apply for judicial review of the Decision dated 26 August 2022 of the Torture Claims Appeal Board (“the Board’s 1^st Decision”), which dismissed her appeal against the Director’s Decision refusing her non-refoulement claim. This will be discussed below.

4.In HCAL 1809 of 2024, the mother acted as the next friend of the 2^nd applicant to apply for leave for judicial review of the Decision dated 3 October 2024 (“the Board’s 2^nd Decision”), which dismissed the 2^nd applicant’s appeal against the Director’s Decision, refusing her non-refoulement claim.

5.In HCAL 23 of 2026, the mother acted as the next friend of the 3^rd applicant to apply for leave to apply for judicial review of the Decision dated 24 December 2025 (“the Board’s 3^rd Decision”), which dismissed the 3^rd applicant’s appeal against the Director’s Decision refusing her non-refoulement claim.

6.The Board’s Decisions were made by the same adjudicator.

7.The claims of the 2^nd and the 3^rd applicants are based on the facts of the mother. The Board had assessed the specific issues relating to the 2^nd and the 3^rd applicants separately from the mother’s claim.

8.The applicants appeared before the Court on 18 May 2026.

9.The father of the 2^nd and the 3^rd applicants also appeared before the Court. His application for non-refoulement protection had been dismissed by the Court of Appeal on 25 February 2026.

The applicants

10.The applicants are nationals of Bangladesh.

11.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by members of the Awami League (“AL”) because the mother was a registered member of Jamaat-e-Islami Party and she refused to leave her political party upon the request of the members of the AL.

12.Details of the facts are set out in the Board’s 1^st Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001177_2022_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001177_2022_files/2nd_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001177_2022_files/3rd_Board's_Decision.pdf

The Director’s Decisions

13.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”).

14.By way of the Director’s Decisions respectively dated 20 October 2021 (“the Director’s 1^st Decision”) for the mother, 14 June 2024 (“the Director’s 2^nd Decision”) for the 2^nd applicant, and 28 August 2025 (“the Director’s 3^rd Decision”) for the 3^rd applicant, the Director assessed the applicants’ claims on all applicable grounds and dismissed their respective claims on all applicable risks because their claims were unsubstantiated.

HCAL 1177 of 2022

The Board’s 1^st Decision

15.The mother appealed the Director’s Decision to the Board. On 21 July 2022, the Board conducted an oral hearing for her appeal. The mother had given evidence and answered the Board’s questions.

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

(1)  The Board accepted the mother’s alleged facts of her claim. [49] One of the salient facts of her claim is that she was kept by Chaudhury (leader of her enemies) and his people for 5 days in about the end of 2016/2017. Chaudhury and his people raped her more than once each day. [35]

(2)  The Board took the view that the ill-treatment does not meet a minimum level of severity. [50]

(3)  There is no reliance that the enemies can or will locate the mother throughout the country. [51]

(4)  It seems that the threats were localized. It is not a genuine and substantial risk that the applicant will be killed or harmed if she returns to Bangladesh. [52]

(5)  Bangladesh police will provide protection for her if she needs it. [54]

(6)  The applicant has the option of relocation in cities such as Dhaka or Chittagong.

17.For the reasons above, the Board dismissed the mother’s appeal and confirmed the Director’s 1^st Decision.

HCAL 1809 of 2024

18.Acting by her mother, the 2^nd applicant appealed the Director’s 2^nd Decision to the Board. On 19 September 2024, the Board conducted an oral hearing for her appeal. The mother had given oral evidence and answered the Board’s questions. The father of the 2^nd and the 3^rd applicants also appeared before the Board. He had answered the Board’s questions. The evidence on the specific issues for the 2^nd applicant given by the mother and the father can be summarized below.

(1)  She is an illegitimate child as the mother and the father were not married. She will not be accepted by the families of the mother and the father. She will also be discriminated because the majority of Bangladesh are Muslim.

(2)  Illegitimate children in Bangladesh will be discriminated, which will adversely affect their education, marriage and inheritance from family. [103]-[112]

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

(1)  There was no evidence that the 2^nd applicant will be harmed if she returns to Bangladesh. [10]

(2)  There was no collaborative evidence to support that the 2^nd applicant will face real risk of being seriously harmed or killed by her parents’ enemies upon her return to Bangladesh. [10]

(3)  State protection will be available. [139]

(4)  Internal relocation is viable. [141]

20.For the reasons above, the Board dismissed the 2^nd applicant’s appeal and confirmed the Director’s 2^nd Decision.

HCAL 23 of 2026

21.Acting by the mother, the 3^rd applicant appealed the Director’s 3^rd Decision to the Board. On 27 November 2025, the Board conducted an oral hearing, in which the mother and the father appeared and answered the Board’s questions. Those issues relating to the 2^nd applicant will apply to the 3^rd applicant as well. In addition, the Board made additional finding of the facts below.

(1)  The AL has lost power in Bangladesh since August 2024 and the enemies’ threats have dissipated. [61]-[69]

(2)  The allegation that the enemies will realize their threats and will cause harm or kill her upon her return to Bangladesh is only speculative. [72]

(3)  State protection is available. [75]

(4)  Internal relocation is viable. [77]

Joint Application for leave to apply for judicial review

22.The applicants jointly filed Form 86 for leave to apply for judicial review of the Board’s Decisions.

23.In support of their applications, the mother has attached a copy of the Board’s Decisions to her affirmation. She said that she did not agree with the Board’s Decisions, but she did not raise any specific reasons to challenge the Board’s Decisions.

DISCUSSION

24.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).

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

26.I shall first deal with the mother’s application.

27.I find that the Board’s view that the mother’s ill-treatment does not meet the minimum level of severity is Wednesbury unreasonable, bearing in mind that the Board accepted that she was kept and raped by Chaudhary and his people more than once every day during her detention for 5 days. The Court of Appeal in Re Nguyen Thanh Thnh [2025] HKCA 88, Hon Chu VP and Cheung JA, held:

“13. …we have reservation on the Board’s view that the rape incident claimed by the applicant could not amount to torture and the reasons it gave, we note that the Board had doubted the credibility and truth of the applicant’s evidence…”

28.However, this deficiency of the Board’s Decision does not give the 1^st applicant a reasonable prospect of success in her intended application for judicial review of the Board’s 1^st Decision because her risk is alleviated or neutralized by state protection and internal relocation alternative, which the 1^st applicant did not dispute. Furthermore, the AL has lost power in Bangladesh since August 2024, and any threat AL followers may have against her have dissipated. See paragraphs 124-132 of the Board’s 3^rd Decision.

29.I will therefore dismiss the mother’s application for leave to apply for judicial review of the Board’s 1^st Decision.

30.I shall now come to the 2^nd and the 3^rd applicants’ applications.

31.In court, I asked the mother if there were any child specific issues, which were not put to the Board for consideration because they were not legally represented. The mother said that she had submitted her daughters’ case to the Board for its consideration.

32.It is apparent that the applicants were not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 held that in such circumstances, it is incumbent upon the Board to see if there were any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more venerable to the applicable risks than the parent.

33.The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53 further held:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

34.The Board had considered the 2^nd and the 3^rd applicants’ situations separately.

35.The Board had considered the child specific issues under paragraph 18, supra and found that there was no collaborative evidence that the 2^nd and the 3^rd applicants will face any real risk if they return to Bangladesh with their mother.

36.The Court of Appeal in Re Penol, Sally Barsolaso & Diggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1st applicant has not identified any other risks of harm that the 2nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29. In the premises, we do not find the 2nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

37.The mother has not raised any concern of potential non-refoulement grounds relating to the 2^nd and the 3^rd applicants, but which had not been advanced to the Board or considered by it because of lack of legal representation on their behalf before the Board. I can think of no child specific issue which the Board had not considered because of lack of legal representation for them.

38.I consider that the 1^st applicant, the 2^nd applicant and the 3^rd applicant do not have any reasonable prospect of success in their intended judicial review of the Board’s Decisions.

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

DISPOSITION

40.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

41.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd and the 3^rd applicants’ application a nullity.

Dated the 24^th day of June 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