Re Amir Hossain

CACV 794/2026 , [2026] HKCA 1772

On appeal from [2026] HKCFI 4118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 794 OF 2026

(ON APPEAL FROM HCAL NO. 552 OF 2026)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Michael Wong (“the Judge”) given on 21 July 2026 ([2026] HKCFI 4118) refusing to give him leave to judicially review the decision of the Director of Immigration (“the Director”) dated 2 March 2026 which refused his request to make a subsequent non-refoulement protection claim.

Background

2.The applicant is a national of Bangladesh born in 1985. He entered Hong Kong illegally and was arrested by the police on 23 September 2012. He made a torture claim on 25 September 2012, which was treated as withdrawn after he failed to return a completed claim form. He then lodged a non-refoulement claim on 19 August 2013, based on his fear of being (1) harmed or killed by people of the Bangladesh Awami League (“AL”) because of his association with the Bangladesh Nationalist Party (“BNP”), and (2) arrested for a false case filed against him and his family members.

3.By a notice of decision dated 9 August 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] grounds. The applicant’s appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board (“the Board”) on 11 December 2019 (“the Board’s Decision”). The applicant’s application for leave to judicially review the Board’s refusal of his appeal was dismissed by the Court on 16 May 2025. 

4.On 26 August 2025, the applicant made a request to the Director to make a subsequent non-refoulement claim. The Duty Lawyer Service informed the Director on 25 September 2025 that they would not represent the applicant. On 9 October 2025, the applicant provided supporting documents to the Director in support of his request.

5.In gist, the applicant’s subsequent claim is on the basis of multiple threats of harm from: (1) members of National Citizen Party (“NCP”), which is a new political power in his country, and Islamic Party like Jamaat-e-Islami (“JI”), both due to political reasons; (2) moneylenders; (3) relatives who frequently threatened to kill him as they feared he would disclose their secret to the police or other department; and (4) the general situation in Bangladesh. He also submitted three online articles about Bangladesh[5] to support his subsequent claim.

6.By a decision dated 2 March 2026 (“the Director’s 2026 Decision”), the Director refused the applicant’s request to make a subsequent claim. The applicant did not appeal the decision.

7.On 11 March 2026, the applicant filed a Form 86 to apply for leave to judicially review the Director’s 2026 Decision. The grounds for seeking relief contained in the accompanying affirmation were summarised by the Judge at §28 of the Form CALL-1 dated 21 July 2026 as follows (footnotes omitted):

“(1) His claims were fresh and different from his previous claim;

(2) There was procedural impropriety or irrationality in that the Director failed to: (a) properly apply paragraph 2 of the UN Committee against Torture General Comment No.2; (b) conduct sufficient inquiry into the relevant country of origin conditions; (c) conduct any screening interview for his new fresh case; (d) consider his fear and that he could not relocate because his enemies could easily trace him wherever he hid in his country; and (e) assess his claim genuinely;

(3) There was error/misdirection in law in that the Director failed to: (a) consider the new fact he had provided in the Request; and (b) consider the supporting documents he submitted;

(4) There was no sufficient basis for the Director to conclude that he and his family members would not be at risk of torture and/or CIDTP upon refoulement; and

(5)  The Director failed to consider his fear for his life and danger upon return to his country.”

8.The Judge heard the application at an oral hearing held on 2 July 2026.  The Judge refused his application, finding that his intended judicial review had no realistic prospect of success.  In summary, the Judge considered that Grounds (1) and (3) to (5) were not arguable as the Director had fully considered the applicant’s claims about the new threats and danger from his new enemies and had given detailed reasons for finding they did not amount to a significant change of circumstances. As to Ground (2), the Judge held that they were general unparticularized assertions that did not assist the applicant. The Judge also had regard to the requirements for making a subsequent claim in section 37ZO of the Immigration Ordinance, Cap. 115, and found that the Director had fully complied with the law and was entitled to conclude that the applicant failed to satisfy an immigration officer that there had been significant change of circumstances, or the changes, taken together with the materials previously submitted in support of his previous claim, would give the subsequent claim a realistic prospect of success. 

Appeal to this Court

9.By a notice of appeal dated 31 July 2026, the applicant appealed the Judge’s decision to this court. The grounds of appeal in the notice of appeal stated that the Director failed to consider his subsequent claim, the situation in his home country, his enemies would harm him and his fear would materialise upon his return. 

10.The applicant lodged a written submission on 13 August 2026. which stated that: (1) the Director’s decision failed to observe the high standard of fairness, did not inquire about his fear and the ongoing threat from his enemies and the country of origin information (COI) which showed that his country would not protect him: (2) The Judge found that he could relocate within his country but even though his country is a vast land with a huge population, it did not mean that it would safe to relocate when it was a long time since he left his country; (3) his claim is based on a true story and it was too risky for him to return to his home country; and (4) the Judge misapplied the test, misstated the thresholds of the applicable grounds, and treated the previous findings on credibility as conclusive instead of adopting a holistic risk assessment. The submission also complained that the Board’s decision was erroneous in law, procedurally unfair, irrational, unreasonable and incompatible with the applicant’s constitutional rights, and had failed to consider updated COI.

11.At the hearing of the appeal, the applicant indicated he had nothing to say.

Discussion

12.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision being challenged.

13.In the present case, the decision that the applicant seeks to judicially review is the Director’s refusal to allow him to make a subsequent claim after the rejection of his non-refoulement claim in 2018. Under section 37ZO(2) of the Immigration Ordinance, the applicant is required to provide 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. Section 37ZO(3) further provided that, in deciding the request, an immigration officer may take into account any finding of credibility or fact made in relation to a torture claim previously made by the applicant.  

14.In the Director’s 2026 Decision, the Director took into account the previous assessment of the applicant’s claim. The Director found that there was no evidence to suggest any risk of harm from the people of AL and any risk of ill-treatment from the police or authorities for the alleged false case, or he would be deprived of a fair investigation or fair trial if he was arrested and charged. The Director also considered state protection and internal relocation would be available to the applicant. The Director found the applicant’s claimed fear in his previous claim no longer existed as admittedly the long regime of the AL has collapsed.  

15.Regarding the new risks of harm raised in the applicant’s subsequent claim, the Director, after considering the supplemental information provided by the applicant, found that (1) the new political threats were speculative and stemmed from the same source of fear already rejected on credibility grounds; (2) the threats from moneylenders and relatives lacked supporting evidence; (3) the three online articles were only general news that were unrelated to the applicant; and (4) on the basis of the available COI, the situation in Bangladesh has been stable since the interim government took charge in August 2024. Overall, the Director found no significant change of circumstances to satisfy the requirements of section 37ZO(2) in the applicant’s request to make a subsequent claim.

16.We agree with the Judge that the applicant’s grounds for seeking relief are not arguable as they are general, unparticularized assertions and there is no basis for the Court to interfere with the Director’s 2026 Decision. We would further point out that judicial review is a remedy of last resort, and generally an applicant should exhaust all appeal procedures or other alternative remedies before resorting to judicial review.  Hence, the applicant ought to have appealed the Director’s decision to the Board before applying for judicial review. On this ground alone, the applicant’s application for leave to apply for judicial review is liable to be dismissed.

17.As to the wide-ranging grounds and assertions made in the written submission, they are mostly general assertions that bear no apparent relevance to the applicant’s subsequent claim and the reasons given in the Director’s 2026 Decision. They also do not properly engage with the reasons of the Judge for refusing his application.

18.For the reasons set out above, the applicant’s appeal is devoid of merits. Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person

[1]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2]  This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]  This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4]  This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] Details of the applicant’s grounds for making a subsequent claim and the three online articles that he submitted to the Director were set out in §§9 and 10 of the Director’s 2026 Decision.