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HCAL 274/2024
[2026] HKCFI 1800
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 274 OF 2024
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BETWEEN
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Sikdar Sabrina (a minor) |
Applicant |
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by Begum Akashi, her next friend |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, “Begum Akashi” be deleted as the 1st applicant, the 2nd applicant be changed to be the sole applicant and her name be amended to “Sikdar Sabrina (a minor) by Begum Akashi, her next friend”, and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 5 February 2024, Sikdar Sabrina (a minor), represented by her mother Begum Akashi (“the Mother”) as her next friend, applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 November 2023 (“the Board’s Decision”).
2. In Form 86, the Mother named herself as the 1st applicant and Sikdar Sabrina as the 2nd applicant. However, the Mother is in fact the applicant of a separate leave application in HCAL 1036/2020 (which was heard together with the Leave Application). Hence, the Mother should not be an applicant together with Sikdar Sabrina in the Leave Application. The Board’s Decision was only concerning Sikdar Sabrina’s non-refoulement claim and not the Mother’s. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL000274_2024_files/the_Board's_Decision.pdf
3. The Board found that Sikdar Sabrina was unable to make out her claims for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected Sikdar Sabrina’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 December 2022 (“the Director’s Decision”), which rejected her non-refoulement claim, and confirmed the same.
Amendments
4. As aforesaid, Sikdar Sabrina should be the sole applicant in the Leave Application. Her name should be stated in Form 86 as “Sikdar Sabrina (a minor) by Begum Akashi, her next friend”.
5. Thus, on this court’s own motion, “Begum Akashi” is deleted as the 1st applicant, the 2nd applicant is changed to be the sole applicant and her name is amended to “Sikdar Sabrina (a minor) by Begum Akashi, her next friend”.
6. In Form 86, the putative interested party’s name was stated as “The Adjudicator, Torture Claims Appeal Board”, when the Director should be the putative interested party. Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”.
Legal representation of the applicant
7. The applicant is a minor born on 12 July 2022 in Hong Kong out of wedlock and is represented by the Mother in the Leave Application.
8. The Mother applied for legal aid for the applicant but her application was refused by the Director of Legal Aid on 26 November 2025.
9. At the hearing before this court on 3 February 2026, the Mother confirmed that she would not engage a private lawyer to represent the applicant.
10. As the applicant was legally represented before the Director and the Board and no new evidence would be advanced in the Leave Application, this Court considered that the lack of legal representation in the Leave Application was a mere irregularity and it would not prejudice the applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application.
The applicant’s case
11. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
12. In sum, the applicant claimed for non-refoulement protection because she would be targeted/harmed/discriminated against by: (1) members of the Awami League (“AL”) on the basis of the Mother’s past affiliation with the Bangladesh Nationalist Party; and (2) local people from the Mother’s community/neighbourhood in the Mother’s home area who might bully or discriminate her on the basis that she was born out of wedlock and/or because she is an illegitimate child.
13. The applicant’s legal representative also claimed that the applicant would likely be a stateless child if she were refouled to Bangladesh. As a result, such situation would create a BOR 3 Risk[1].
Oral hearing
14. The Mother’s own application for leave to apply for judicial review (HCAL 1036/2020) was heard together with the Leave Application on 3 February 2026. When this court asked the Mother for the applicant’s grounds of the intended judicial review, the Mother said that the applicant was born out of wedlock in Hong Kong with a Bangladeshi who was also a non-refoulement claimant. The Mother claimed that her family, her late husband’s family and the Bangladeshi society would not accept the applicant.
15. The Mother also claimed that she could not marry the applicant’s father as he was married with another woman and she did not know if he had divorced his wife. Even if they could marry each other, they did not have the money to get married, but they were still living together. Further, the Mother wanted the applicant to be educated in Hong Kong.
Grounds for judicial review
16. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
17. The applicant’s Form 86 and the supporting affirmation dated 5 February 2024 were made by the Mother. The Mother did not advance any specific ground for the applicant’s intended judicial review in Form 86 nor in the supporting affirmation.
18. As aforesaid, at the oral hearing before this court, the Mother repeated the possible rejection and/or discrimination that the applicant would face upon refoulement, and added that she wanted the applicant to remain in Hong Kong for education. However, these could not amount to valid grounds for the applicant’s intended judicial review.
Discussion
19. First of all, the possible rejection and/or discrimination that the applicant might face upon refoulement had been assessed by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review, save when the Board’s findings are erroneous on point of law or irrational.
20. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
21. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
22. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 27 September 2023. The applicant was represented by a duty lawyer and the Mother appeared as a witness. Hence, the applicant did have an opportunity to present her case to the Board through her legal representative and the Mother.
23. As can be seen from the Board’s Decision, the Board did give due consideration to all the risks that the applicant might face if she were refouled to Bangladesh.
24. As can be seen from paragraph 46 of the Board’s Decision, the Board had given full justifications for its findings that: (1) the applicant was not a target of AL as alleged or at all; (2) the applicant did not face any risk throughout Bangladesh; (3) The Mother did not suffer injuries to the required severity; and (4) the state of Bangladesh would not be unwilling to help the applicant for a Convention reason.
25. The Board also considered the applicant’s claim that she feared discrimination and persecution from the local people because of her status as an illegitimate child. The Board accepted that illegitimate children in Bangladesh might be looked upon differently, and there might be a social stigma attached with illegitimacy, which might even lead to discrimination against illegitimate children.
26. However, if someone were facing discrimination because of their race, religion, nationality, political opinion or membership of a particular social group, they would not be entitled to protection under the RC[2] unless that discrimination amounted to persecution.
27. The Board found the Mother’s assertion that the applicant would not have any identity or acceptance because she was born out of wedlock was only speculative. The applicant’s father was also a Bangladeshi and his name appeared in the applicant’s birth certificate. At the same time, the Mother did not commit adultery in conceiving the applicant in Hong Kong as her husband had passed away. The only issue might be that the Mother was not married to the applicant’s father when she gave birth to the applicant. Yet, that did not need to be revealed to anyone.
28. Even assuming that the local people might be unaccepting of the applicant’s birth, the Board found that internal relocation appeared to be the solution. The applicant was ethnically a Bangladeshi. While the Mother might be asked to explain why she was a single mother living in a new city, it did not follow that there would be questions raised as to the legitimacy of the applicant, and in turn, that the applicant would be discriminated against (to the high threshold required) because of her illegitimacy.
29. The Board also examined the issue of statelessness of the applicant as raised by her legal representative. The Board found that under the Citizenship Act 1951, the applicant was a citizen of Bangladesh by descent simply because either of her parents was a Bangladeshi national. There was no reason to think why the applicant would not obtain Bangladeshi citizenship through the nationalities of either of her parents. The Board thus found no basis to believe that the applicant would be considered stateless as feared.
30. In terms of state protection, the Board accepted that corruption and abuse of power had been and continued to be major problems affecting the police in Bangladesh. However, country of origin information (“COI”) also indicated the government had taken steps to improve the performance of the police to make the police more accountable, disciplined and professional, and importantly to make it easier for members of the public to report corruption and lack of service. The Board found that although the Mother might feel scared that she and the applicant might be targeted, it did not say that state protection would not be available to them.
31. After due consideration of the evidence and the applicable laws, the Board found that the applicant was unable to make out her claims for non-refoulement protection in Hong Kong. There was no evidence of any current risk to the applicant. Even if the applicant were facing threats as were feared by the Mother, there was nothing to suggest that the police or other protection would be unavailable to her. The applicant could not, on the facts as found, bring herself within any of the grounds enumerated in the definition of “refugee” in Article 1A(2) of the RC.
32. The Board was also not satisfied that the applicant or the Mother would be personally at risk of being deprived of life, or that the applicant would face torture or ill-treatment upon refoulement. There was no involvement of any public official or any person acting in an official capacity in the alleged ill-treatment of the Mother by AL people. The applicant had failed to satisfy the elements of torture as defined in section 37U of the Immigration Ordinance.
33. Given its findings as summarised above, the Board noted that it was strictly not necessary to deal with the question of internal relocation. Nevertheless, the Board still explored the viability of internal relocation for the applicant as a matter of caution. The Board found that the alleged risks of the applicant were localized. The Board was of the view that the applicant, being a minor, could relocate with the Mother and stay in other parts of Bangladesh without undue hardship. The Board considered that Khulna or Chittagong could be suitable cities for the purpose of the applicant’s relocation based on the available COI. These cities were also sufficiently distant from the Mother’s home area and the chances of AL people travelling so far to personally target the applicant would be further reduced.
34. The finding of facts, including assessment of COI and risks of harm, was solely within the ambit of the Board. The Board did deal with all the applicant’s alleged danger including those specific to the applicant and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
35. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
36. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
37. For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of March 2026
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( Teresa NG )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 25 March 2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 25 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 21361
Director of Immigration
Putative interested party’s ref. no.: QA T/C 4327/18 (formerly RBCZ 11836/17) [T8S53]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[2] RC is the abbreviation for the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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