Shafiqul Islam and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 586/2026

[2026] HKCFI 4713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 586 of 2026

BETWEEN

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:

1.  The Form 86 be amended on the court’s own motion.

2.  The 1^st, 2^nd, 3^rd and the 4^th applicants’ application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 17 March 2026, a family of 4 applicants applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Director of Immigration (“Director”) dated 25 February 2026 (“Director’s Subsequent Decision”) refusing the applicants’ request (“Request”) for making a subsequent claim for non-refoulement under s.37ZO of the Immigration Ordinance. The 1^stand 2^nd applicants are father and mother of the 3^rd applicant (a boy born in Hong Kong on 28 August 2012) and the 4^th applicant (a girl born in Hong Kong on 12 October 2020). When the 3^rd and 4^th applicants were born, the 1^st and 2^nd applicants were not yet married. They later married in Hong Kong on 28 February 2025. Shortly after the 1^st and 2^nd applicants got married, the 1^st applicant, and the 2^nd applicant for herself and on behalf of the 3^rd and 4^th applicants made the Request on 28 March 2025.

2.For the 1^st applicant, the Director on 29 August 2018 (“Director’s Decision on A1”) rejected the 1^st applicant’s non-refoulement claim under all applicable grounds[1] except on the ground of torture which the Director rejected on 15 November 2011. The basis of the 1^st applicant’s claim was then if refouled to Bangladesh, he would be harmed or killed by the people of the Alwami League (“AL”) as he was a member of the opposite party, the Bangladesh Nationalist Party (“BNP”). On 11 June 2019, the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dismissed the 1^st applicant’s appeal against the Director’s Decision on A1. On 22 October 2024, a Deputy High Court Judge refused [2]to grant leave to the 1^st applicant to apply for judicial review of the Board’s Decision. On 5 March 2025, the Court of Appeal[3] dismissed the applicant’s appeal. On 9 May 2025, the Court of Appeal refused [4]to grant leave to the 1^st applicant to further appeal.

3.For the 2^nd and 3^rd applicants, the Director on 28 September 2017 (“Director’s Decision on A2 & A3”) rejected their non-refoulement claims under all applicable grounds except on the ground of torture which ground the Director rejected on 6 March 2013. The basis of their claims was that, if refouled to Indonesia, she would be harmed or killed by the 2^nd applicant’s father as the 2^nd applicant refused the latter’s request to marry his creditor to pay off his debts as well as by the creditor. The 3^rd applicant would not be accepted by the Muslim society as he was born out of wedlock. On 16 April 2019, the Board dismissed their appeals against the Director’s Decision on A2 & A3. On 3 April 2024, a Deputy High Court Judge refused [5]to grant leave to them to apply for judicial review of the Board’s Decision. On 30 October 2024, the Court of Appeal[6] dismissed the applicants’ appeal. On 11 February 2025, the Court of Appeal refused [7] to grant leave to them to further appeal.

4.For the 4^th applicant, the Director on 30 March 2021 (“Director’s Decision on A4”) rejected her non-refoulement claims under all applicable grounds. The basis of her claim was that, if refouled to Indonesia, she would be harmed or killed by the 2^nd applicant’s father as the 2^nd applicant refused the latter’s request to marry his creditor to pay off his debts and also having given birth to the 4^th applicant out of wedlock. On 11 October 2019, the Board dismissed her appeal against the Director’s Decision on A4.

5.The 3^rd and 4^th applicants are minors, and sue through the 2^nd applicant as their next friend. An application for judicial review by a child claimant should only proceed in accordance with the regime under O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend): see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971 at [57]. The 3^rd and 4^th applicants’ applications for legal aid were not successful.

6.At the hearing on 4 August 2026, all the applicants attended in person. Despite the non-compliance with the requirement stated in the preceding paragraph, this court would treat the non-compliance with the rule as a mere irregularity, and proceed with the hearing: see Fabio (supra).

7.In the Form 86, the applicants named both the Director and the Board as the proposed respondents. As the Director should have been the proper putative respondent, the Form 86 shall be amended according by deleting the name of the Board from the proceedings.

Background

8.The background can be viewed at the reported decisions set out in [2] and [3] above as well as the Board Decision of the 4^th applicant, which can be viewed at the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000586_2026_files/the_Board's_Decision.pdf

9.In the Request, the applicants were represented by the Duty Lawyer Service. The duty lawyer representing the applicant submitted further information on their behalf in support of the Request.

10.The basis of the applicants’ subsequent claim was that, if refouled to either Indonesia or Bangladesh, they would face significant and real risk of harm, violence or even death due to their personal circumstances and the hostile socio-cultural and religious environments in Indonesia as well as the political situation in Bangladesh.

The statutory provisions on subsequent claims

11.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)  he 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.”

Discussion

12.A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision[8]. It is therefore sufficient to state my observations after considering the Director’s Decision and the applicant’s materials adduced.

13.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[9], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the Form 86, the applicants averred that the Director’s Subsequent Decision was procedurally unfair, unreasonable and irrational. The other averments were directed against the Board. In the 1^st applicant’s supporting affirmation, he repeated the same averments contained in the Form 86. The averments stated in the 2^nd applicant’s affirmation were substantially directed against the Board.

14.At the hearing, the 1^st applicant submitted that he could not go back to Bangladesh as the 3^rd applicant is already a teenager having grown up in Hong Kong. He wanted his family to be together. When he was asked to elaborate the allegations stated in the Form 86, the 1^st applicant stated that he did not raise those allegations.

15.As for the 2^nd applicant, she said she had nothing to say for her own case, and all that she wanted was to have the entire family together. In the submissions, the 2^nd applicant made on behalf of the 3^rd and 4^th applicants, she stated that it would be difficult for her children to return to Indonesia as they only speak English and Cantonese. It would therefore be difficult for their education in Indonesia. They also need their father. She therefore asked to be allowed to stay in Hong Kong as a family. The 3^rd applicant requested to speak to court directly. In view of his maturity, I allowed him to supplement the 2^nd applicant’s submissions made on his behalf. The 3^rd applicant stated that he would like to stay in Hong Kong as all his friends were here. He would have no friends in Indonesia.

16.In the Director’s Subsequent Decision, after the Director had taken into account the facts and findings he made in the Director’s Decisions and the decisions of the Board referred to in [2] to [4] above, and all the available information the applicants submitted, the Director found:

Regarding the 1^st applicant

17.The nature of his claim regarding the fear from the AL remained the same. The new information the 1^st applicant submitted regarding the fall of the Hasina government was not directly related to his claim. The updated COI also showed that the situation in Bangladesh had gradually stabilized since August 2024. The Director found that there was no significant change of circumstances.

Regarding the 2^nd applicant

18.The Director found that the 2^nd applicant repeated the same fear of being harmed or killed by her father for refusing to marry his creditor as well as for having given birth to the children out of wedlock. The Director did not accept that there had been a significant change of circumstances since her previous non-refoulement claim.

Regarding the 3^rd and 4^th applicants

19.The Director found that the child-specific risks in Indonesia had been considered in the previous claims, and the basis of the subsequent claim did not constitute any significant change of circumstances. The Director further found that the illegitimate status of the children had been resolved with the recent marriage of the 1^st and 2^nd applicants.

20.The Director had considered the education condition in Bangladesh, and was satisfied that the country condition of Indonesia and Bangladesh would provide reasonable state protection and internal relocation in either country to the children and as a family as a whole.

21.The Director concluded that the Request was largely based on the same source of fear, and that there was no sufficient evidence to show that there was a significant change of circumstances since their claims were finally determined previously. The Director found that there was no realistic prospect of success and refused the 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.

22.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 grounds put forth by either the 1^st or 2^nd applicants had either been disavowed or were vague and lacked particulars. The submissions they made at the hearing, expressing their desire to stay in Hong Kong and to enable the 3^rd and the 4^th applicants to continue their education in Hong Kong could not constitute as valid grounds. The Director had considered the claims of the 1^st and 2^nd applicants as well as the 3^rd and 4^th applicants separately. In the Director’s Decision on A3 and the Director’s Decision on A4, the situation in Indonesia and the relevant COI had been considered. In the Director’s Subsequent Decision, the Director further considered the situation in Bangladesh and the relevant COI as they could possibly also return to Bangladesh. I am satisfied that the Director has correctly applied the law under s. 37ZO.

23.The applicants have not shown any errors of law or procedural unfairness or irrationality in the Director’s Subsequent Decision. The applicants’ 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[10].

Orders

24.The Form 86 be amended on the court’s own motion.

25.The 1^st, 2^nd, 3^rd and the 4^th applicants’ application for leave to apply for judicial review be dismissed.

Dated the 4^th day of September 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