Rezaul Mohammad v. Director of Immigration
Read the full judgment text of HCAL 792/2026 on BabelCite. This High Court CFI judgment was delivered on 30 June 2026.
1. This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 10 July 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds.
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HCAL 792/2026 [2026] HKCFI 3666 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 792 OF 2026
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord 53 r 3) Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: Introduction 1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 10 July 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds. 2.The Applicant is a 45-year-old national of Bangladesh who entered Hong Kong illegally in 2015 and was arrested by police on 16 February 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of the political party Awami League (“AL”) as he supported their rival Jamaat-e-Islami (“JeI”). Previous Non-Refoulement Claim 3.By a Notice of Decision dated 7 November 2017 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”). 4.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm or kill him or to specifically target him for harm given that he was just an ordinary JeI supporter without any official post in the party, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 157 million people spread across a vast territory of more than 130,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Chittagong or Dhaka where it would be difficult if not impossible for anyone to locate him. 5.The Applicant’s appeal against the Director’s decision was dismissed by the Board on 24 December 2018 after hearing him in answer to questions raised of his claim and upon finding no merits in his claim or appeal, and that it also confirmed the Director’s decision. 6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 30 December 2022 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 155/2019 [2022] HKCFI 3811). Request To Make Subsequent Claim 7.Some 1 ½ years later on 24 May 2024 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that he has been informed by his friends in Hong Kong that they had news in Bangladesh that those local AL supporters are still looking to kill him that he still fears of being harmed or killed if refouled to Bangladesh. 8.There are however constraints on a claimant who has previously made a non‑refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:
9.Accordingly, the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, but which he never did despite being repeatedly reminded to do so and being provided with legal representation from the Duty Lawyer Service (“DLS”). 10.By a Notice of Decision dated 10 July 2024 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide any evidence in writing to satisfy an immigration officer that there has been any significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given the unchallenged findings by both the Director and the Board in his previous claim of the availability of state protection and internal relocation to the Applicant upon his return to Bangladesh to negate whatever risk that may arise from his intended subsequent claim. 11.On 22 April 2026 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he produced some 13 pages of submissions in which he just repeated his claim as before and recited some applicable law and principles with bare assertions that the Director had failed to properly apply them in the consideration and refusal of his request to make a subsequent claim but without providing any relevant details or particulars or elaboration as to how the Director did so in support of his intended challenge. 12.By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made. 13.As the last day of the 3-month period for him to file his Form 86 fell on 10 November 2024 after discounting the month of August for court’s vacation, the Applicant was therefore almost 1 ½ years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393. 14.In the Applicant’s case, a delay of 1 ½ years must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that he was then without any means and had to find money to pay for the filing of his Form 86 which accounted for his delay. 15.The record shows that the Director’s decision was sent on the same day of 10 July 2024 to his lawyer from DLS without being returned through undelivered post, and even if his assertion of financial difficulties to pay for his judicial review application were true, it cannot in my view justify his such serious delay. 16.As for the merits, if any, of his intended application, as noted above that the Applicant has failed to put forward any proper ground for his intended challenge in his Form or affirmation, nor was he able to do so at the hearing of his application. 17.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application. Restricted Proceedings Order 18.Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined under the USM in the previous proceedings, ending with the order of this Court in refusing him leave to apply for judicial review of the Board’s decision, but that he is still trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before or invalid basis, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him. 19.Section 27 of the High Court Ordinance, Cap 4 provides as follows:
20.Relevantly, Section 27A also provides:
21.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section. 22.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]). 23.In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] –[40]). 24.In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate his non-refoulement claims without viable grounds amounts to an abuse of process, and that unless a RPO is made against him, to which he was unable to answer or raise any valid objection at the hearing, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary. 25.Accordingly, I make the following order:
Disposition 26.The Applicant’s application for leave to apply for judicial review is dismissed. 27.A RPO in terms of paragraph 25 be made against the Applicant. Dated the 30th day of June 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
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Cases cited in this judgment