Nabin Fakir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 755/2026

[2026] HKCFI 3458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 755 of 2026

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:  

The applicant’s application for leave to apply for judicial review be dismissed.

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 16 April 2026, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Director (“Director”) dated 11 February 2026 (“Director’s Subsequent Decision”) refusing the applicant’s request (“Request”) for making a subsequent claim for non-refoulement under s.37ZO of the Immigration Ordinance. In an earlier decision of the Director dated 20 November 2015 (“Director’s Earlier Decision”), the Director rejected the non-refoulement claim under all applicable grounds[1] except the ground on BOR 2 risk, which further ground was also rejected by a decision of the Director dated 3 October 2017 (“Director’s Earlier Further Decision”).

2.On 7 February 2018, the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dismissed the applicant’s appeals against the Director’s Earlier Decision and the Director’s Earlier Further Decision (“Board’s Decision”). On 11 December 2018, a Deputy High Court Judge (“Judge’s Decision”) refused to grant leave to the applicant to apply for judicial review of the Board’s Decision. On 25 June 2019, the Court of Appeal dismissed the applicant’s appeal against the Judge’s Decision. On 18 September 2019, the Court of Appeal refused to grant leave to the applicant to appeal to the Court of Final Appeal against its decision.

Background

3.The background can be viewed at the Judge’s Decision ([2018] HKCFI 2571) at the Judiciary website. Unless otherwise specified, I shall also adopt the abbreviations and descriptions stated in the Board’s Decision.

4.After the dismissal of his leave application to the Court of Final Appeal, the applicant made a request on 10 December 2024. The Director refused the said request on 27 July 2021. On 15 September 2025, the applicant made the Request. The applicant was represented at the Request by the Duty Lawyers Services, which provided additional information and grounds in support of the Request.

The statutory provisions on subsequent claims

5.Subsequent non-refoulement claims are regulated by s 37ZO of the Immigration Ordinance (Cap 115), which provides:

Section 37ZO.

“Limitation on subsequent claim

(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

6.The Request was based on the applicant’s claim that, if refouled to Bangladesh, he would be harmed or killed by the members of BNP, the interim government and the family of Delawar as the applicant was a member of the AL and had been accused of killing Delawar.

Discussion

7.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision[2]. It is therefore sufficient to state my observations after considering the Director’s Decision and the applicant’s materials adduced.

8.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The Form 86 provided no such grounds. In the supporting affirmation, the applicant averred that the Director failed to make proper inquiry and to have understanding of the applicant’s situation.

9.As the applicant had requested for a hearing, the court scheduled a hearing on 2 June 2026. The applicant appeared in person, and submitted a hand-written submissions to court. After the court had read it, it informed the applicant that the submissions were only concerned with the Board’s Decision, but not about the Director’s Subsequent Decision. The court then asked the applicant if he had anything to say regarding the Director’s Subsequent Decision. The applicant stated that he had nothing to say.

10.In the Director’s Subsequent Decision, after the Director had taken into account the facts and findings he made in the Director’s Earlier Decision and the Director’s Earlier Further Decision, the Director found that the new information the applicant provided lacked credibility and was untrue. The Director found that the applicant had concocted the factual basis of his case to advance the Request. The Director found that the applicant’s claim of the change of circumstances was not substantiated. After having considered the updated country of original information, the Director found that there was no change of situation regarding its previous findings of availability of state protection and internal relocation. The Director found that the Request had no realistic prospect of success and refused the applicant’s Request. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

11.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Director correctly applied the law and observed a high standard of fairness. The applicant’s written grounds in the supporting affirmation were general, and the written submissions were not about the Director’s Subsequent Decision. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicant’s intended challenge to Director’s Subsequent Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Order

12.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 3^rd day of July 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

Form CALL-1