Hossain Ahmed Acting As the Next Friend of Hossain Maymuna v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 891/2023

[2026] HKCFI 5625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 891 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 be treated 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 daughter born on 25 January 2018 in Hong Kong (“the daughter”). They are illegal immigrants. The applications mentioned below were made by the father acting as the guardian or the next friend of the daughter.

2.The daughter applies for leave to apply for judicial review of the Decision dated 21 March 2023 of the Torture Claims Appeal Board (“the Board’s Decision”), which dismissed her appeal against the Notice of Decision dated 26 April 2022 of the Director of Immigration (“the Director’s Decision”) dismissing her subsequent claim. Her subsequent claim relies upon the facts of the father.

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

The applicant (the daughter)

4.The daughter is a national of Bangladesh, adopting the father’s nationality.

5.The daughter first lodged a non-refoulement claim, on the basis that, if refouled, the father will be harmed or killed by his political enemies, the Awami League, thereby subjecting her to the applicable risks. The Director rejected her claim. She made a subsequent claim to the Director.

6.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/HCAL000891_2023_files/the_Board's_Decision.pdf

The Director’s Decision

7.The Director considered the daughter’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”).

8.By way of the Director’s Decision, the Director dismissed the daughter’s subsequent claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

9.The daughter appealed the Director’s Decision to the Board. On 10 March 2023, the Board conducted an oral hearing for the appeal. The daughter was represented by a duty lawyer, and the Director was represented by government counsel. The father had given evidence and answered the Board’s questions. The Board bore in mind the guidelines relating to minors laid down by 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.

10.Having considered the evidence and legal submissions, the Board made the findings below.

(1)  The Board believed the father’s story. [95]

(2)  There is no evidence that the daughter would face a separate persecution risk individually arising from her father’s case. [97] The same rationale applies to other applicable risks.

(3)  It seems that state protection will be available although corruption is still widespread in Bangladesh (the Board had set out various country-of-origin information in Bangladesh, but did not come to a stark conclusion itself, leaving to the Court to make an assessment after going through the materials). [98]-[120]

(4)  Support services for women and children through the Multi-Sectoral Programme under the Ministry of Women and Children Affairs and other various organizations in Bangladesh. [129]

(5)  Free education will be provided to the daughter if she returns to Bangladesh. [130]

(6)  The Department of Social Services in Bangladesh will also render assistance to help children facing violence, abuse and exploitation. [132]

(7)  The daughter failed to establish any of the applicable risks if she returns to Bangladesh with her father. [139]-[155]

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

Application for leave to apply for judicial review

12.The father filed Form 86 on 7 June 2023 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation, the father did not raise any specific ground to challenge the Board’s Decision. He has attached a copy of the Board’s Decision to his affirmation.

DISCUSSION

14.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 daughter’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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. This is a separate assessment of the daughter’s subsequent claim by the Board. She was legally represented. The father confirmed that full instructions in relation to the child specific issues of the daughter had been given to the duty lawyer. There is no reason that the duty lawyer had not submitted the daughter’s case to the Board. Before me, the father confirmed that he had given all the specific issues relating to the duty lawyer before the Board. In my view, the Board’s Decision bears no error of the law, or is procedurally unfair. The decisions are not irrational.

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

DISPOSITION

17.I refuse to grant leave to the daughter to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

18.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 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