Re Shanta Alima Akter and Others

CACV 129/2026, [2026] HKCA 1577

On appeal from [2026] HKCFI 500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 129 OF 2026

(ON APPEAL FROM HCAL 154/2023)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Levy (“the Judge”) given on 3 February 2026[1] (“the Leave Decision”) refusing to grant leave for the applicants to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 19 January 2023 (“the Board’s Decision”) dismissing the applicants’ appeals against the decisions of the Director of Immigration (“the Director”) both dated 24 November 2021 rejecting the applicants’ non‑refoulement claims.

Background

2.The 1^st applicant is a national of Bangladesh.  She is the mother of the 2^nd and 3^rd applicants.  The 2^nd and 3^rd applicants, who are minors and daughters of the 1^st applicant, were respectively born in Hong Kong on 15 November 2019 and 21 June 2021.  The 2^nd and 3^rd applicants’ non-refoulement claims (as well as their leave applications in the court below and the present appeals) were lodged by the 1^st applicant on their behalf.  

3.The background to this case, the applicants’ bases to their claims and the reasons given by the Board in its Decision have been set out therein[2] and summarised by the Judge in the Leave Decision at [8]-[9], which will not be repeated.

4.An oral hearing was initially fixed for the leave applications upon the applicants’ request.  However, the court was informed on 22 August 2025 that the applicants had requested to withdraw their judicial review applications, as the issues at home have been resolved and that they could return.  For this reason, the Judge proceeded to determine the leave applications on paper.

5.After considering the documents filed in support of the leave applications and having scrutinised the Board’s Decision, the Judge found no errors of law nor procedural unfairness or irrationality therein.  Further, by reason of the applicants’ withdrawal request, the leave applications in any event stood to be dismissed.  Accordingly, the Judge dismissed the applications, for the reasons stated in the Leave Decision.

Appeal to this court

6.By a Notice of Appeal dated 12 February 2026, the 1^st applicant (on behalf of herself and the other applicants) stated:

“We would like to reject and review the Decision made by the Court and TCAB.  They disregard our dangerous situation.”

7.In the 1^st applicant’s written submissions dated 21 July 2026 (lodged also on behalf of the other applicants), she repeated the dangers she may face should she be refouled, such as the risk of her being killed by her parents and “two moneylenders”.

8.We note that the 1^st applicant had also lodged written submissions on 12 March 2026.  However, those submissions were over 15 pages and were therefore in breach of Practice Direction 4.1.  As directed by the Registrar of Civil Appeals on 8 July 2026, those submissions will not be considered by this court in the present appeal. 

9.We heard the appeal on 18 August 2026, at which the 1^st applicant appeared in person.  At the hearing, the 1^st applicant had nothing further to add to the matters already set out in the documents lodged with the court.  

Discussion

10.As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

11.In our view, the 1^st applicant has wholly failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. 

12.In the present case and in respect of the 1^st applicant’s claim, the Board found that the primary threat of harm posed to the 1^st applicant (as claimed by her) from her parents by reason that she refused to accede to an arranged marriage (and instead married the father of the 2^nd and 3^rd applicants) was not made out on the evidence, as that the past assaults by the 1^st applicant’s father were minor in nature. 

13.As to her claims that she will be harmed by a moneylender due to her default in repayment of a loan, the Board also found this to be unsubstantiated, as she has never been harmed by the moneylender in the past.  Moreover, the Board found that the risk of harm was localised to her home location, and that state protection was available to the 1^st applicant in order to minimise the risk of harm, if any. 

14.These were factual findings and conclusions open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [6]-[12].  We see no basis to interfere.  

15.Accordingly, the 1^st applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision with regards to her appeal/claim, or how such Decision could be said to be Wednesbury unreasonable.

16.It is however necessary for this court to consider the positions of the 2^nd and 3^rd applicants separately, as they are minors and have not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A).  See Fabio Arlyn Timogan & Ors v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971. 

17.As per the directions made by the Registrar of Civil Appeals on 22 February 2026, the applicants applied for legal aid and filed Memoranda of Notification of an Application for Legal Aid on 8 April 2026.  Their applications were however rejected by the Director of Legal Aid on 22 June 2026, and their appeals were referred to this court for determination.

18.We now turn to the 2^nd and 3^rd applicants’ appeals.

19.The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan & Ors and Re Jasvir Singh & Ors [2021] HKCA 53 which established that:

(a)  non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;

(b)  even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;  

(c)  ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

20.The position is therefore that while the reality remains in the majority of cases involving minors that the factual basis of the minor’s claim would be dependent on or even entirely rest upon that of the parent’s, regard must be had to the personal circumstances of the minor (and any risks of harm posed to the minor) by the decision-maker.  In this case, like the majority of similar cases involving minor applicants, the basis of the 2^nd and 3^rd applicants’ perceived fear or risk of harm upon refoulement rested upon the primary case of their mother’s.

21.The 1^st applicant’s case, as presented to the Board on behalf of the 2^nd and 3^rd applicants, was that her parents would harm them as they were in their eyes illegitimate children and that they would also for this reason be subjected to discrimination by the broader society in Bangladesh. 

22.We have considered and subjected the Board’s Decision to anxious scrutiny, and we are of the view that the Board was clearly aware of the need to separately consider the individual positions of the 2^nd and 3^rd applicants (Board’s Decision, [10], [59]) and did in fact comprehensively analyse the same (Board’s Decision, [65]-[67]).  Specifically, the Board found that the 2^nd and 3^rd applicants would not realistically be shunned by the Bangladeshi community by reason that the 1^st applicant was married to their father (a Muslim man) under Islamic law.  There was no cogent reason for anyone to consider her children as illegitimate. 

23.Moreover, the 2^nd and 3^rd applicants, who were born in Hong Kong after the 1^st applicant had fled Bangladesh, have not been “subjected to the troubles to which the 1^st applicant claims to have been exposed” (Board’s Decision, [60]).  The 1^st applicant’s fear of harm in respect of the 2^nd and 3^rd applicants was without sound basis and was thus not made out.  

24.Accordingly, the 2^nd and 3^rd applicants have failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision with regards to their appeals/claims, or how such Decision could be said to be Wednesbury unreasonable.

25.Further, in the case of the 2^nd and 3^rd applicants, we do not consider there to be any indication that the merits of their claim (or any underlying matter that may support minor-specific non-refoulement grounds) had not been adequately explored before the Judge due to the lack of legal representation.  

26.For completeness, we are of the view that the 1^st applicant has failed to explain why, despite her claims in the court below (per her withdrawal application) that her problems in Bangladesh have been resolved, such problems were somehow revived and still apparently persist and that it is now unsafe for her and her daughters to return (as submitted in her written submissions lodged in this appeal).

27.In the premises, the 1^st to 3^rd applicants have advanced no viable grounds of appeal against the Judge’s decision, and their appeals are accordingly dismissed.

The 1^st applicant, unrepresented, appearing in person

The 2^nd and 3^rd applicants, unrepresented, absent

[1]  [2026] HKCFI 500

[2]  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000154_2023_files/the_Board's_Decision.pdf