BEPARI RAFIQ v. DIRECTOR OF IMMIGRATION

HCAL 1168/2021

[2025] HKCFI 5479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1168 OF 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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 23 July 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all the applicable grounds and that his subsequent appeal to the Torture Claims Appeal Board (“Board”) was withdrawn at his own request and according dismissed by the Board.   

2.  The Applicant is a 46-year-old national of Bangladesh who entered Hong Kong illegally on 5 December 2015 and surrendered to the Immigration Department some 5 months later on 16 May 2016 when he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by certain local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”).

Previous Non-Refoulement Claim  

3.  By a Notice of Decision dated 17 May 2018 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”).

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 those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm or kill him or any political reason for them to specifically target him given that he was just an ordinary BNP supporter without holding any official post in the party, that in any event in the absence of 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 157 million people spread across a vast territory of more than 148,000 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 or Chittagong where it would be difficult if not impossible for anyone to locate him.

5.  The Applicant’s appeal against the Director’s decision was withdrawn and dismissed by the Board on 23 November 2018 at his own request and upon his written confirmation that it was safe for him to return to his home country, and that he well understood the consequences of the withdrawal in that the Board would take no further action regarding his appeal and that the Director’s decision would remain as final.

6.  Accordingly the Applicant was repatriated back to Bangladesh on 28 January 2019.

Request To Make Subsequent Claim

7.  Some 2 years later in 2021 the Applicant sneaked back into Hong Kong, and on 26 May 2021 in writing to the Immigration Department requested to make a subsequent claim on the basis that upon being repatriated to Bangladesh in 2019 he had again been kidnapped, physically assaulted and was given death threats by those same AL supporters that he fears of being harmed or killed by them 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 by a letter dated 11 June 2021 in which he just repeated the same claim as before.     

10.  By a Notice of Decision dated 23 July 2021 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, 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 in his previous claim of the availability of both state protection and internal relocation alternatives to the Applicant upon his return to Bangladesh to similarly negate whatever risk that may arise from his intended subsequent claim.

11.  On 19 August 2021 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 or supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge.

12.  Moreover some 4 years later in 2025 the Applicant again filed an affirmation requested to withdraw his leave application by claiming as before that his problem in his home country has been resolved and that it is now safe for him to return to Bangladesh but without any necessary or relevant details or particulars or explanation as to how it is so.                          

13.  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, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss his application.

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