SHEIKH MOHAMMAD NUR MOHAMMAD AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2528/2024

[2026] HKCFI 3408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2528 of 2024

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 Applicants in open court;

1.  Leave to apply for Judicial Review be refused; and

2.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 3^rd applicant’s application a nullity.

Observations for the Applicants:

INTRODUCTION

1.  In Form 86, the 1^st applicant (A1) and the 2^nd applicant (A2) are the father and mother of the 3^rd applicant (“the son”). A1 and A2 are the next friends of the son, a minor, born on 18 August 2023. A1 and A2 had raised their non-refoulement claims in HCAL 1891 of 2019 and HCAL 2964 of 2018 respectively. Their applications had failed because the Board did not accept their evidence. They had applied for leave for judicial review of the Board’s Decisions and failed, too.

2.  The son was legally represented. The parents were present as the witnesses only. I shall therefore call the son as the applicant below.

3.  The applicant applies for leave to apply for judicial review of the Decision dated 28 November 2024 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing his appeal against the Director’s Decision as described below.

4.  The parents appeared before the Court at the hearing on 11 May 2026. Upon enquiry from the Court, the mother confirmed that the Board’s Decision is not wrong and she had no complaint.

5.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the parents act as the next friends of the applicant.

The applicant

6.  The facts of the applicant’s claim rely on the facts of his parents.

7.  The applicant is a national of Bangladesh, born in Hong Kong. He is an illegal immigration as his parents are also illegal immigrants. The parents’ non‑refoulement applications have been refused by the Director and, upon appeals, by the Board as well.

8.  The parents have raised the issues as follows:

(1)  The applicant is an illegitimate child and he would be bullied and discriminated by schoolmates upon his return to Bangladesh. [45]

(2)  The applicant might be harmed or killed by the father’s relatives and the father’s uncle. [46]

(3)  The applicant is too young to take care of himself if the parents were killed in Bangladesh. [47]

(4)  The state may not render assistance to them in Bangladesh as the police are corrupt. [51]

(5)  Relocation is not viable because they do not have the means to do so and the mother’s creditor may locate her and it is difficult to find a job in Bangladesh. [52]

9.  Details of his claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002528_2024_files/the_Board's_Decision.pdf

The Director’s Decision

10.  The Director considered the applicant’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”).

11.  By way of Notice of Decision dated 14 June 2024 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 17 October 2024, the Board conducted an oral hearing for his appeal. The applicant was represented by a duty lawyer. The parents were also present and had given oral evidence before the Board and answered questions from the Board.

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

(1)  There was no evidence that state protection will not be available to the applicant if he returns to Bangladesh with his parents. [190]

(2)  Internal relocation is viable. [191]

(3)  The applicant faces no genuine and substantial risk of being subjected to ill‑treatment if refouled to Bangladesh. [207]

(4)  There is no foreseeable, real, personal and present risk of being tortured if the applicant returns to Bangladesh. [212]

14.  For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

15.  The applicant has filed Form 86 dated 18 December 2024 for leave to apply for judicial review of the Board’s Decision.

16.  In the affirmation in support of the application, the parents have raised no specific reasons to challenge the Board’s Decision other than to exhibit a copy of the Board’s Decision.

DISCUSSION

17.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the mother confirmed that she had no complaint about the Board’s Decision.

19.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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.”

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

21.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

22.  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.

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