ISLAM MD SHOHIDUL as guardian ad litem of ISLAM SARFARAZ ADIL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]
HTML content
HCAL 1898/2025
[2026] HKCFI 562
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1898 of 2025
BETWEEN | ||
| Islam Md Shohidul as guardian ad litem of Islam Sarfaraz Adil | Applicant | |
| and | ||
| Torture Claims Appeal Board/ Non-refoulement Claims Petition Office | Putative Respondent | |
| and | ||
| Director of Immigration | Putative | |
| Interested Party | ||
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 RHC in these proceedings as a mere irregularity without rendering the applicant’s application a nullity.
Observations for the Applicant:
THE APPLICATION
1. As the guardian of the applicant, his father (“the father”) applies for leave to apply for judicial review of the Decision dated 15 August 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.
2. The father and the applicant appeared before the Court on 29 December 2025.
3. 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 proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant is a national of Bangladesh, a minor of 1 year old. He is an illegal immigrant as his mother took him and sneaked into Hong Kong together by speedboat on 2 September 2023.
5. The applicant’s mother (“the mother”), on behalf of the applicant, lodged a non-refoulement claim with the Director on the basis that, if refouled, he will be harmed or killed by (i) his mother’s ex-husband, Hossain, (ii) the Awami League (“AL”) people, the father’s enemies in Bangladesh, particularly from the Muslim community. He is also in fear of harm because his parents’ family members do not accept him.
6. The mother divorced Hossain in Bangladesh. Hossain was angry with her. His father was a supporter of the Bangladesh Nationalist Party, a rival party to AL. The AL members had attacked his father in Bangladesh. His mother’s family will not accept him because he was born out of wedlock. Details of his claim are set out in the Board’s Decision. See hyperlink.
The Director’s Decision
7. 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”).
8. By way of Notice of Decision dated 11 March 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.
The Board’s Decision
9. As guardian of the applicant, the mother appealed the Director’s Decision to the Board. On 3 June 2025, the Board conducted an oral hearing for his appeal with his parents appearing before the Board. The Board had made enquiries with the applicant’s mother in relation to the applicant’s nationality and situations in Bangladesh.
10. Having considered the evidence, the Board found the facts below.
(1) If his parents are still in fear of the AL people, they may relocate internally in Bangladesh to avoid them. [74] They may relocate to Khulna. [77]
(2) The AL are no longer the ruling party of Bangladesh. [79]
(3) The mother’s ex-husband, Hossain, does not have the resources to locate him and his family all over Bangladesh. The risk of being harmed by him is very slim. [80]
(4) There was no evidence that the state was involved. [85] & [86]
(5) There is no genuine risk for the applicant to return to Bangladesh and he is not legible for non-refoulement protection in Hong Kong.
11. 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
12. Form 86 dated 25 August 2025 was filed for leave to apply for judicial review of the Board’s Decision.
13. The applicant’s father did not raise any specific ground to challenge the Board’s Decision.
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 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).
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant’s father submitted that the Board had asked child specific issue in the hearing and he had submitted to the Board that his family does not accept the applicant and he cannot return to Bangladesh. He had told the Board about it, too.
16. 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.”
17. This was a separate assessment of the applicant’s case by the Board, which had taken on board all the relevant factors concerning the applicant. I do not find any child specific issue, which was not brought to the Board’s attention because of lack of legal representation. The applicant’s father had submitted that he appeared before the Board and they had given a full story of the case to the Board for its consideration.
18. There is no reason for this Court to interfere with the Board’s finding of the facts in this case.
19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
20. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
21. 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 4th day of February 2026
| (Allen LEE) for Registrar, High Court |
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 the Applicant’s solicitors must: | ||||
| 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)). | Sent to the Applicant on 4/2/2026 Islam Md Shohidul as guardian ad litem of Islam Sarfaraz Adil Applicant’s ref. no: Nil. | Sent 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 4/2/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 25933 Director of Immigration Putative Interested Party’s ref. no.: RBCL 2181/24 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) |
Form CALL-1