Beagum Bilkish and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2493/2025

[2026] HKCFI 4161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2493 of 2025

Application for Leave to Apply for Judicial Review

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

Following;

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.

THE APPLICATION

1.The 1^st applicant is the mother of the 2^nd applicant, a daughter, aged 9, and the 3^rd applicant, the son, aged 7.  They will be referred to as the mother, the daughter and the son respectively unless otherwise called.  

2.This is a re-assessment by the Torture Claims Appeal Board (“the Board”) of different constitution pursuant to a Consent Order of this Court.  In this re-assessment of the appeal, the applicants were represented by a duty lawyer and the Director was represented by 2 government counsel.  The hearing was conducted on 4 September 2025.  The Board dismissed their appeal by Decision dated 27 October 2025 (“the Board’s Decision”). 

3.The applicants jointly apply for leave to apply for judicial review of the Board’s Decision.  Their joint application relies upon the facts of the mother. 

4.The applicants did not request a hearing.  However, this Court fixed a hearing for the mother and her children to appear before it in order to clarify some issues. 

5.At the hearing, the mother informed the Court that they had applied for legal aid.  The Director of Legal Aid refused their application.  They are seeking assistance from the Non-Government Organization. 

6.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. 

The applicants

7.The applicants are nationals of Bangladesh.  The mother came to Hong Kong to work as a domestic helper.  Her contract terminated, but she overstayed since 28 May 2015.  She gave birth to the daughter and the son in Hong Kong. 

8.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will face real risk.  As to the mother, she claims that:

(1)   She will be harmed or killed by the Awami League (“AL”) people because she was an informer of the Bangladesh Nationalist Party (“BNP”). (Past events ground)

(2)   She has given birth to 2 illegitimate children and she will be discriminated by the Muslims in her country. (Discrimination ground)

(3)   She had headache and medical treatment in Bangladesh is not as good as in Hong Kong. (Medical ground)

(4)   Internal relocation is too harsh for her. [16] (Relocation ground)

9.As to the child specific issues for the daughter and the son, the issues are:

(1)   The son has congenital health problems and medical treatment is not accessible in Bangladesh. (Medical ground)

(2)   The son and the daughter are illegitimate children.  They may be discriminated, or exposed to rape, suicide, underage/forced marriage, child labour and trafficking. (Discrimination ground)

10.Details of the facts are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002493_2025_files/the_Board's_Decision.pdf

The Director’s Decision

11.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”). 

12.By way of Notice of Decision dated 11 March 2019 (“the Director’s Decision”), the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because the claims were unsubstantiated.  

The Board’s Decision

13.On 4 September 2025, the Board conducted an oral hearing for their appeals. As stated in paragraph 2, the parties were legally represented. 

14.As shown in the Board’s Decision, the Board had considered the facts of the case, the country-of-origin information in relation to the relevant issues, bearing in mind the higher standards of fairness in the assessment of the evidence and separate consideration of the child specific issues. 

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

In relation to the mother:

(1)   The mother is not a credible witness, and her evidence in relation to the facts of her case was rejected. [77]-[80] The Past events ground fails. 

(2)   There was no evidence in support of the mother’s medical ground that her condition is imminently life threatening. [67] The Medical ground fails. 

(3)   There was no evidence that she would be discriminated because her daughter and son were born out of wedlock.  The Discrimination ground fails. 

(4)   State protection will be available to her if she returns to Bangladesh. [80(4)] & [125]

(5)   Even if her evidence were accepted, she had not suffered any ill-treatment that satisfied BOR 3 risk. [81] & [101]

(6)   There was no evidence to establish BOR 2 risk. [166]

(7)   Internal relocation is viable. [114] The Relocation ground fails. 

In relation to the daughter and the son:

(8)   They are not seriously ill.  The Board did not accept that their medical conditions met the high threshold in Paposhvill. [98] The Medical ground fails. 

(9)   BOR 3 risk was not engaged on medical ground. [101]

(10)  The Discrimination ground is only speculative. [103]-[112]

(11)  Internal relocation is viable. [114]

Overall protection

(12)  Overall, state protection would be available to them, [125] and organizations in Bangladesh will render assistance to the mother and the children. [127]

16.It therefore dismissed their appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review

17.The applicants filed Form 86 on 11 November 2025 for leave to apply for judicial review of the Board’s Decision.  The applicants did not put forth any valid grounds in support of their application. 

18.In the mother’s affirmation in support of their application, the mother did not raise any valid reason to challenge the Board’s Decision. 

DISCUSSION

19.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). 

20.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, I asked the mother if there were any child specific issues that she would like the Court to consider.  She said that her family in Bangladesh would not accept them; that they would be discriminated, and the medical facilities in Hong Kong are better than those in Bangladesh.  She further said that she would not be able to look after them if she works in Bangladesh.  She said she had put all these problems before the Board at the hearing.  

21.It is obvious that the Board had conducted a very comprehensive assessment of the mother’s case and the children’s cases separately.  There is no reason for this Court to interfere with the Boarding’s findings. 

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

DISPOSITION

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

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

Dated the 29^th day of July 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