Islam Manirul Acting As the Next Friend of Hasan Saimon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 882/2023

[2026] HKCFI 5608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 882 of 2023

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 Applicant in open court;

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

1.  Leave 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 as a mere irregularity without rendering the Applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The 1^st named is the father (“the father”) acting as the next friend of the applicant, his son born on 12 September 2012 in Bangladesh (“the son”). They are illegal immigrants. Form 86 is amended accordingly.

2.The applications mentioned below by the son were made by his father as his guardian.

3.The son was one of the applicants in the non-refoulement claim lodged by his parents. The Director of Immigration (“the Director”) rejected their claim. They appealed to the Torture Claims Appeal Board (“the Board”). The Board dismissed their appeal. They applied to the Court of First Instance for leave to apply for judicial review of the Board’s Decision and failed. They appealed to the Court of Appeal, which dismissed the parents’ appeal, but allowed the son’s appeal. The son’s case was then remitted to the Board of a different constitution for re-assessment. By Decision dated 17 April 2023 (“the Board’s Decision”), the Board dismissed the son’s appeal.

4.The son applies for leave to apply for judicial review of the Board’s Decision. His application relies upon the facts of his parents’ claim, who’s non-refoulement claim has failed and the Court of Appeal has dismissed their appeal.

5.The father appeared before the Court on 23 September 2026.

The applicant

6.The son is a national of Bangladesh. He lodged a non-refoulement claim, on the basis that, if refouled, he will be at risk of harm or being killed by (i) his father’s enemies from the Awami League (“AL”); (ii) his father’s creditors; and (iii) his mother’s ex-husband.

7.Details of the facts are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000882_2023_files/the_Board's_Decision.pdf

The Director’s Decision

8.The Director considered the son’s claim 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”).

9.By way of the Notice of Decision dated 24 February 2017 (“Director’s Decision”), the Director dismissed the son’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

10.The son’s case was remitted to the Board for re-assessment. On 7 September 2022, the Board conducted a re-hearing for the appeal. The parents represented the son at the hearing.

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

(1)  The facts in support of the parents’ non-refoulement claim failed, as confirmed by the Court of Appeal. It is unconvincing that the creditors intended to kill the son’s grandmother. There was no evidence that the ex-husband of the son’s mother had caused trouble to the family. The state was not involved in this case, and there was no evidence that the son will be kidnapped by the creditors if he returns to Bangladesh. [41]-[44] & [57]-[66]

(2)  State protection will be available. [68]-[69]

(3)  Internal relocation is viable. [99]

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

Application for leave to apply for judicial review

13.The son filed Form 86 on 6 June 2023 for leave to apply for judicial review of the Board’s Decision.

14.In support of the application, the father did not raise any specific reason to challenge the Board’s Decision. He has attached a copy of the Board’s Decision to the affirmation.

DISCUSSION

15.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 applicant’s 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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the father said that he had applied to the Department of Legal Aid for assistance, but was refused. He had presented the full facts of the son’s case before the Board.

17.I asked the father if there were any child specific issues, which were not put to the Board for consideration because he was not legally represented. The father said there was nothing else.

18.It is apparent that the applicant was 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, and to have separate consideration of the child specific issues as the minor is more venerable to the applicable risks than the parent.

19.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.”

20.This is a separate assessment of the son’s case by the Board.

21.The son was born in Bangladesh. His father has confirmed that there is no child specific issue that the Board had not considered before coming to its decisions. In my view, the Board’s Decision does not bear any error in law or procedural irregularities, or otherwise is irrational.

22.The son therefore fails to show that there is any realistic prospect of success in the proposed judicial review.

DISPOSITION

23.I refuse to grant leave to the son to apply for judicial review of the Board’s Decision. Accordingly, I dismiss the 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 applicant’s application a nullity.

Dated the 7^th day of October 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