ISLAM MD SHOHIDUL as guardian ad litem of ISLAM SARFARAZ ADIL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 119/2026, [2026] HKCA 1225

On Appeal From [2026] HKCFI 562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 119 OF 2026

(ON APPEAL FROM HCAL NO 1898 OF 2025)

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JUDGMENT

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

1.  This is the Applicant’s appeal brought by his father, Islam Md Shohidul, as his guardian ad litem against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 4 February 2026 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 15 August 2025, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 March 2025.

2.  The Applicant is a minor born out of wedlock in Hong Kong on 14 June 2024.  His parents are both nationals of Bangladesh (respectively “the Mother” and “the Father”).  The Applicant (also of Bangladeshi nationality) alleges that, if refouled to Bangladesh, he will be harmed or killed by (i) his Mother’s abusive ex-husband (Hossain Md Faruk), and (ii) members of the Awami League (“AL”) because his Father supported the Bangladesh Nationalist Party, a political rival to the AL[1].  The Applicant also alleges that he will not be afforded with basic legal rights and will face discriminatory treatment from the Muslim community in Bangladesh because he is considered to be an illegitimate child in Islam[2].

3.  The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing the Applicant’s appeal against the Director’s decision have been set out in detail in the Board’s Decision, and summarised by the Judge in the Judge’s decision (see §§4-6 and 9-10 of CALL-1 Form).  We do not propose to repeat them here, save to point out that the Judge seemed to have mistakenly thought that the Applicant sneaked into Hong Kong with the Mother on 2 September 2023, but it was in fact his half-brother, born out of the marriage between the Mother and her ex-husband in Bangladesh, who entered Hong Kong illegally on that occasion in 2023[3].  This error of the Judge does not, however, affect the Judge’s reasoning for dismissing the Applicant’s leave application. 

4.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§14-19 of the CALL-1 Form.  In gist, the Judge held that the Applicant had failed to raise, or establish, any specific grounds of intended challenge against the Board’s Decision, or show that he had any realistic prospect of success in his intended judicial review.

THIS APPEAL

5.  In the Notice of Appeal filed on 11 February 2026, the Father on behalf of the Applicant merely states the following:

“I do not agree with the decision of the Court of First Instance, because my problem is still exist and my enemies are still threatening me. If I go back to my home country I will be killed by my enemies. I request the Court of Appeal to scrutinize my claim and give me chance to save my life.” [sic]

6.  In the written submissions lodged by the Father on behalf of the Applicant on 10 June 2026, the Applicant repeats his claimed fear of ill-treatment or harm upon refoulement to Bangladesh, and alleges, inter alia, that:

(1)  The Judge’s decision was unreasonable.

(2)  The Judge did not apply the principle of irrationality to the decisions of the Director and the Board.

(3)  The Judge did not apply the principle of procedural fairness to the decision of the Director, who was required to give reasons to justify his decision.

(4)  The Judge did not apply high standards of fairness.

(5)  The Judge did not properly consider the problems he would face in his home country.

(6)  The Board failed to give him a sufficient chance to provide evidence.

(7)  The Board relied on unofficial and hearsay materials.

7.  At the hearing of the appeal, the Father said that he needed some more time to sort out his problems, and the Applicant would not be accepted by the community in Bangladesh.

DISCUSSION

8.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

9.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. 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: Re Kartini [2019] HKCA 1022, at §13.

10.  The Applicant is a minor.  The Court’s approach in considering a minor’s claim for non-refoulement protection is well established, and has been set out in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53.  It is not necessary to repeat the same in this judgment.

11.  The matters raised in the Applicant’s Notice of Appeal and written submissions are all general allegations without particulars. They cannot constitute valid grounds of appeal against the Judge’s decision.

12.  The Applicant’s claim was premised fundamentally on his parents’ claims and also on his status as a child born out of wedlock.  In the appeal before the Board, the only decision under appeal concerned the Director’s rejection of the Applicant’s non-refoulement claim.  The Board considered the non-refoulement claims of the Applicant’s parents in the context of the assessment of the Applicant’s non-refoulement claim.  There is no question of the Board considering all 3 claims as a composite one.  The Board noted that the Applicant did not yet have issued to him any Bangladesh passport and thus would not be able to enter Bangladesh.  In any event, even if he were to obtain a Bangladesh passport and be sent back with his parents to Bangladesh, internal relocation and state protection would be available to them to avoid any risk of harm.  The Board found that there were no substantial grounds for believing that the Applicant would face any real risk of harm or ill-treatment upon refoulement.

13.  In the Judge’s decision, the Judge accepted that there was a separate assessment of the Applicant’s claim by the Board.  The Judge did not find any issue specific to the Applicant as a minor which had not been advanced or considered by the Board because of a lack of legal representation for the Applicant.  We also do not see that there was any relevant child-specific matter(s) relating to the Applicant’s claim which the Board ought to have considered, but failed to do so. 

14.  The Board and the Judge did not err in principle or approach.  We cannot see any valid ground to intervene in the Judge’s decision to reject the Applicant’s application for leave to apply for judicial review.

15.  The Applicant’s intended judicial review is not reasonably arguable.  So is his appeal against the Judge’s decision. Accordingly, we dismiss the appeal.

16.  For the avoidance of doubt, the absence of legal representation for the Applicant in this appeal is treated as an irregularity without rendering his appeal a nullity.

[1]  See §3 of the Board’s Decision.

[2]  See §§15 and 16 of the Board’s Decision.

[3]  See §44 of the Board’s Decision.