Amin Al v. Director of Immigration

HCAL 728/2024

[2026] HKCFI 5156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 728 OF 2024

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

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 24 April 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 then applicable grounds.

2.The Applicant is a 44-year-old national of Bangladesh who arrived in Hong Kong on 13 November 2006 as a visitor and with permission to remain as such up to 17 November 2006 when he did not depart and instead overstayed, and was arrested by police more than 2 months later on 1 February 2007. 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 his paternal uncle Abdul Quddus over a land dispute between his uncle and his father in his home village.

Previous Non-Refoulement Claim          

3.By a Notice of Decision dated 12 December 2014, the Director rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Hong Kong Bill of Rights Ordinance, Cap 383 (“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 his paternal uncle upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from his uncle, that there is no reliable evidence of any real intention of his uncle to seriously harm or kill him other than to pressure his father to give up the share in grandfather’s land in his home village but which had been taken control by his uncle, that in any event it was a private land dispute between his father and his uncle and within their family 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 166 million people spread across a vast territory of more than 143,000 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 his uncle to locate him.

5.The Applicant’s appeal against the Director’s decision was then dismissed by the Board on 15 October 2015 after hearing him in evidence and submissions made on his behalf by his lawyer and upon finding no merits in his claim or appeal, and that it also confirmed the Director’s decision.

6.The Applicant never sought leave from the court to apply for judicial review of the Board’s decision[1], and that subsequently he also withdrew his claim under the remaining applicable ground of risk of violation of his other absolute and non-derogable rights including right to life under Article 2 of HKBOR, and was voluntarily repatriated to Bangladesh in 2017.

Request To Make Subsequent Claim

7.Some 6 years later on 28 August 2023 the Applicant sneaked back into Hong Kong and was arrested by police on the same day, and by a letter dated 12 September 2023 to the Immigration Department he requested to make a subsequent claim on the basis that upon returning to Bangladesh he still faced threats from his paternal uncle over the land dispute in his previous claim, that since the passing of his father that he fears that his uncle will now target his threats against both the Applicant and his brother as they stand to inherit their father’s share in the land, and that he has also been informed by his mother that his uncle has made false charges of extortion and murder to the police against both of them so as to stop them from inheriting their share of the land that the Applicant also fears of being arrested and prosecuted by the police over those false charges 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:

“(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.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

9.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 a statement repeating his said claim as before of fear of harm from his paternal uncle over their land dispute and also from the police over those false charges allegedly made by his uncle against him.    

10.By a Notice of Decision dated 24 April 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 sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined and in the absence of any reliable evidence of any adverse interest of the Bangladeshi police or authorities in the Applicant over any false charges other than some uncorroborated hearsays or his own groundless speculations, 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 the Director of the availability of both state protection and reasonable internal relocation to the Applicant upon his return to Bangladesh to similarly negate whatever risk that may arise from his intended subsequent claim.

11.On 8 May 2024, the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Adjudicator was in breach of procedural fairness for unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Respondent failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Applicant believes that he was not given a fair opportunity to keep forward his submissions in an oral hearing nor was he invited to submit written submissions;

(6)  That the Torture Claims Appeal Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated with the lack of credible source of information had resulted in making groundless speculations that it is safe for him to return to his home country;

(7)  That the credibility finding was unreasonable due to failure to give sufficient weight to documentary evidence on newspaper article about incidents involving family and failure to properly consider the stroke affected the Applicant’s memory not mentioned in the medical report raised by the Applicant.  

12.Firstly, on the bases of the Applicant referring in his proposed grounds to an Adjudicator and to matters such as a stroke affecting his memory mentioned in some medical report which are either wholly irrelevant or have never been raised in his request to make a subsequent claim that it appears to me that the Applicant had simply copied his proposed grounds from some cases of other applicants which have nothing to do with his own case at all.        

13.Secondly, even by giving him the benefit of applying these grounds to his own case, they are all just bare and bald assertions containing a few key words or phrases  but without any relevant or necessary details or particulars or elaboration as to how they apply to the Applicant’s case, or in what way did the Director or the immigration officer err in the decision or that it was unfair or unreasonable, while given clearly that the bases of his intended subsequent claim are essentially the same as in his previous claim which he had chosen not to make any legal challenge by way of judicial review or otherwise to the court before being voluntarily repatriated to his home country, and given the statutory restrictions as noted above to prevent abuses by applicants to repeatedly make unmeritorious subsequent claims so as to prolong their unlawful stay in Hong Kong, it is well within the discretions of the Director and his immigration officers to decide whether or not it is necessary to conduct any oral hearing to screen any request to make a subsequent claim, in particularly for those applicants with legal representation from Duty Lawyer Service as in the case of the Applicant in his request to make a subsequent claim. As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

14.Moreover, the Applicant has recently in July 2026 in writing and by affirmation requested to withdraw his application as his issues in his home country have been resolved that he now wants to return to Bangladesh as soon as possible.

15.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 that I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his last confirmation of no more issue for him to return to his home country, I accordingly dismiss his leave application.

Dated the 15^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