Md Salim v. Director of Immigration
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HCAL 438/2026 [2026] HKCFI 5103 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 438 OF 2026 BETWEEN
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: Leave to apply for judicial review be refused. 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 12 February 2026 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claims had been rejected by the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds. 2.Given the facts that the Applicant had already twice in the past raised a claim for non-refoulement protection but was inevitably repatriated to his home country after the rejection of both claims by the Director and the Board, and that he again sneaked back to Hong Kong to raise a third claim based on what he claimed to be some significant change of circumstances in his home country after his last repatriation, and the implication of the Director’s refusal to allow him to make his subsequent claim thereby denying him the right to the 2-tier screening process under the USM, high standards of fairness would require the court to scrutinize the Director’s reasons for the refusal, and thus entails a more detailed factual backgrounds of the previous claims of the Applicant as well as his intended subsequent claim. Previous Torture Claim 3.The Applicant is now a 51-year-old national of Bangladesh born and raised in Patabhog, Munshiganj where he worked as a mechanic and used to support the political party Bangladesh Nationalist Party (“BNP”) since his days as a member of their student wing, but in 2002 he quitted BNP after Dr A.Q.M. Badruddoza Chowdhury, the founding secretary-general of BNP who was later elected the President of Bangladesh in 2001 but was forced to resign in 2002 by his own party, and subsequently the Applicant joined the new party formed by Chowdhury in 2004 of Liberal Democratic Party (“LDP”), during which he and his fellow LDP members and supporters were often involved in violent conflicts with the BNP supporters. 4.During one of such violent conflicts between the 2 rival parties, the Applicant witnessed the killing of one of his fellow LDP members by the BNP people who then threatened him not to give his statements to the police in their investigation into the killing, while LDP insisted that he should do so, and to avoid the threats and pressure from both sides, the Applicant departed Bangladesh in January 2007 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his torture claim accordingly. 5.By a decision dated 8 February 2011 the Director rejected his claim of risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”) upon finding his evidence of being threatened by both BNP and LDP as not credible due to material inconsistencies and discrepancies in both his account of events and his own resultant actions, and that even if his account of events were true that there was no reliable evidence that any such threats were carried out or instigated by the state or authorities of Bangladesh that would amount to or constitute an act of torture under the Convention or the said Ordinance. 6.On 18 February 2011 the Applicant filed a petition against the Director’s decision but which was also dismissed on 16 March 2011, and subsequently on 11 April 2011 he was repatriated to Bangladesh. Previous Non-Refoulement Claim 7.Upon returning to his home village in Bangladesh, the Applicant subsequently married his wife and raised a family with their daughter in his home village, and worked as a field worker for a microfinance company known as RDP in the Munshiganj District which received capital deposits from customers for income generation investments, and for his part the Applicant was to deal with customers from his home village, many of them were affluent businessmen and local senior members of the political party Awami League (“AL”). 8.However, the company was closed down in late 2014 that many of his customers lost all their deposits in the company, and for which they blamed the Applicant and made threats against him, and on one occasion he was abducted by them led by 2 local AL leaders Jithu and Panir, during which he was beaten with wooden sticks and was threatened to sell his house to compensate their losses or else they would kill him and his family. 9.As a result the Applicant became fearful for his life and fled to Dhaka to take shelter in a friend’s place, but later when he was informed by his family that some AL people had come looking for him, the Applicant felt it was no longer safe to remain in Bangladesh, and so in July 2015 he departed for China, and from there he again sneaked into Hong Kong on 16 August 2015 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non‑refoulement claim for protection, and for which he completed a Non-refoulement Claim Form (“NCF”) and attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”). 10.By a Notice of Decision dated 28 December 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”). 11.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found material inconsistencies and discrepancies in his evidence including serious issues over the authenticity of some of his supporting documents including the medical certificate in support of his claim of being attacked and beaten by his enemies and the AL people that it is not accepted that his claim of fear of harm from those investors was found to be incredible or unreliable, that even if his account of events prior to his departure of Bangladesh were true that there is no substantial risk of him being harmed or killed by those investors led by the 2 local AL leaders over their monetary dispute as asserted upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of any of them to seriously harm or kill him other than to press him to repay them their money, that in any event it was a private monetary dispute between them only without 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 160 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 Dhaka where it would be difficult if not impossible for anyone to locate him. 12.On 10 January 2018 the Applicant lodged his appeal to the Board and for which he attended an oral hearing on 3 September 2018 during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board, and on 2 October 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision. 13.In its decision[1] the Board similarly found material inconsistencies and discrepancies in the Applicant’s claim and his evidence given at the hearing before the Board that it rejected the credibility of his claim of having been threatened or attacked or abducted by his alleged enemies including any local AL leaders which were also contradicted by relevant COI as well as his own subsequent conduct that it was not accepted that the Applicant would face any risk of any form of harm upon his return to Bangladesh that his claim failed on all applicable grounds. 14.On 10 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but before it could be dealt with by the court, he withdrew his application and was voluntarily repatriated to Bangladesh on 4 September 2020. Request To Make Subsequent Claim 15.Some 5 years later on 19 October 2025 the Applicant sneaked back into Hong Kong, and upon his arrest by the police on 26 October 2025, he in writing to the Immigration Department requested to make a subsequent claim on the basis that if refouled to Bangladesh he would be harmed or killed by his customers over some monetary dispute and/or by the BNP people for political reasons. 16.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:
17.Accordingly, the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”) with the following information:
18.By a Notice of Decision dated 12 February 2026 the Director refused to allow the Applicant to make a subsequent claim upon finding no credence in his claims of risks of harm from the BNP people or his customers as wholly unreliable and incredible as some mixture of fabrications and facts taken from his previous claims, that his credibility was further and seriously undermined by the unchallenged findings by both the Director and the Board in his previous claims against his credibility which the immigration officer was entitled to take into account under Section 37ZO (3) of the Immigration Ordinance in assessing the credibility of his intended subsequent claim, that in any event the nature and basis thereof were essentially the same as those of his previous claims, and that he failed to provide sufficient 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. 19.On 23 February 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 just repeated his intended subsequent claim as before and with some bare and bald assertions that the Director refused his request without any proper enquiry or carefully understanding his situation by travelling to his home country to inspect the situation and to ask those familiar with his case what real danger that he would face if returned to Bangladesh, but without putting forth any relevant or necessary details or particulars or elaboration as to how the Director did so, nor was he able to do so at the hearing of his application. 20.In the premises, and having considered the Director’s decision with rigorous examination and anxious scrutiny, having borne in mind the implication of the Director’s refusal to allow the Applicant’s request thereby denying him of the 2-tier screening process of his alleged subsequent claim under the USM, which must however be balanced by the necessity of the Director and his immigration officers to subject such requests to a stringent filtering process so as to eliminate unmeritorious claims by applicants seeking to avoid or delay their removal by the Immigration Department, and in the present case the Applicant had already made not one but two previous claims which had been rejected essentially on unchallenged adverse findings made against his credibility by both the Director and the Board, I do not find any error of law or procedural unfairness in the Director’s decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make yet another non-refoulement claim, and as I am not satisfied that there is any prospect of success in his intended application for judicial review, I refuse to grant leave and accordingly dismiss his application. Dated the 10th 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 |