MONDAL RIPON v. DIRECTOR OF IMMIGRATION

HCAL 1986/2025

[2026] HKCFI 4136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1986 of 2025

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and the Applicant’ submission in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 2 September 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 April 2025 (the “2025 Notice”) refusing his request to make a subsequent claim (the “Request”).

2.  An urgent hearing on 24 September 2025 was scheduled and notice of hearing was sent to him by post on 19 September 2025 to the Castle Peak Bay Immigration Centre where he was then detained pending repatriation to Bangladesh. However, the Applicant had been repatriated on 18 September 2025. Prior to his departure, he had signed a statement acknowledging he had outstanding court proceedings but chose not to disclose his correspondence address for communication with the court and service of court documents. He also acknowledged that he understands it is his duty as a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner and accepts that the consequence of any delay occasioned by his choice. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant is a Bangladesh national, now aged 49. He was arrested on 1 January 2016 claiming to have sneaked into Hong Kong from the Mainland on the same day. He subsequently lodged a non-refoulement claim by way of written signification dated 7 January 2016. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director by his Notice of Decision dated 23 March 2018 (the “2018 Notice”). His appeal against the 2018 Notice was dismissed by the Board’s decision dated 19 November 2018 (the “Decision”). His application for leave to apply for judicial review of the Decision was rejected by this Court on 10 February 2023. On 5 May 2024, this Court also refused his application for leave to appeal against that Decision out of time. His previous claim has run its full course. Yet, he did not return to Bangladesh. On 29 December 2024, he made the Request to file a subsequent claim. His Request was rejected by the Director’s 2025 Notice. He now seeks leave to apply for judicial review of that 2025 Notice.

The law

4.  Under the USM, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance. The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success. In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant.

The Board’s and the Director’s finding in the previous claim

5.  The Applicant’s personal background, the factual background leading to the present application, the basis of his previous claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, he claims he will be harmed or killed by members of the Awami League political party (the “AL”) for refusing to join the AL and paying them protection money. In essence, the Board found (i) the Applicant was not credible, (ii) there was no substantial grounds for believing that his perceived fear was real and foreseeable; and (iii) that, even if there were, internal relocation and reasonable state protection would be available to him upon his return to Bangladesh.

The immigration officer’s decision in the 2025 Notice

6.  In his statement filed with the Request (the “Statement”), the Applicant asserted that he was told by his wife in Bangladesh that the Muslims who used to be affiliated with the AL mentioned in his previous claim started to attack the Hindu minority in Bangladesh. They vandalised the temple and statue of Hinduism in his neighbourhood and took away his neighbour’s property by force. She told him that the Muslim AL members who used to extort money from him in 2007 had come to his home in August, September and November 2024 armed with wooden stick and demanded his wife for his whereabouts. The Muslims had threatened his wife not to report the incidents to the police. He said his wife felt so scared that she moved to her father’s home at Rupganj, Dhaka to avoid harm from the Muslims. He said it is difficult for him and his family to relocate to other cities in Bangladesh because Muslims can identify them by their cosmetic and the ornaments they wear. His wife had planned to move to India, but the Indian borders had been closed to Bangladeshi.

7.  In answer to the immigration officer’s enquiries, the Duty Lawyer Service (“DLS”) acting for the Applicant provided the following additional information (the “Response”). His parents, siblings, wife and children believe in Hinduism. He never had encounters due to his religious belief before he left Bangladesh in July 2015. In November 2024, the Muslims from Yunus group led by the current Chief Adviser of the Interim Government had come to his home armed with wooden sticks demanding information as to his whereabouts. The DLS submitted some news articles in support of the Applicant’s claim about the tension between the Bangladeshi government and the Hindu minority and the Applicant’s medical record as evidence that he is suffering from high blood pressure because of the stress during his detention.

8.  The immigration officer found the Applicant’s claim in his Statement and Response contradicting and lacking in credence. In his Statement, he said that some Muslims who used to be AL members visited his home in August 2024, but in his Response, he said that the Muslims belonged to the group led by the current Chief Adviser of the Interim Government which ousted the AL government under Prime Minister Sheikh Hasina. But, according to authoritative and credible country of origin information (“COI”), Yunus had never been on the same front with Sheikh Hasina in the political spectrum. Yunus had been investigated by Sheikh Hasina and prosecuted in connection with his position as head of the Grameen Bank and fired as managing director for the bank. The immigration officer also found it inconceivable that the Applicant as an ordinary villager and low-level supporter of the Bangladesh Nationalist Party since around 1995 who had refused to join the AL and had no political involvement at all and who had left the country about ten years ago would attract considerable attention from a top leader of the Interim Government or be targeted by a Muslim group led by that top leader. The immigration officer considered the Applicant’s new claim a fabrication.

9.  In respect of the generic condition of the Hindu minority in Bangladesh, the COI indicated that the Interim Government has been putting effort in six key reforms including protection of minorities and recommended complete abolition of Article 2A of the Constitution which declares a “state religion”. The Interim Government has been relentlessly working to improve the fate of all irrespective of race, religion and caste and ensure their equal rights. Against such recent developments, the immigration officer cannot accept that the Applicant had provided a truthful account in his Request and does not consider he had provided sufficient evidence in writing to satisfy him that there has been a significant change of circumstances since his previous claim was finally determined. He also found from updated COI that there is no indication of any significant change of country conditions in Bangladesh that would render state protection or internal relocation unavailable. The Applicant could not even pass the first hurdle under section 37ZO.

10.  In conclusion, the immigration officer is not satisfied that the Applicant has met the requirements for making a subsequent claim and hence refused his Request.

The legal principles applicable to judicial review

11.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

12.  The thrust of the Applicant’s grounds for judicial review in his supporting affirmation is that he is a Hindu and has “Muslim problems” returning to Bangladesh. This is essentially his case as presented by him in his Request. However, he advanced new allegations in his grounds for judicial review which are not contained in his Statement or Response. He asserted that despite Sheikh Hasina had left Bangladesh, “her rule is active in the country” and “all the judicial system is still run by her ex-government.”  He asserted that Yunas is “furious for the minority”. These are bare allegations unsupported by evidence and contrary to the COI. He also claimed that the AL supporters attacked his home, looted his property and even tried to rape his family members. None of these had been raised in his Response. According to his Statement, his wife and family had moved to her father’s home at Rupganj, Dhaka to avoid the risk of harm. All these are allegations of fact which had not been advanced before the immigration officer. None of them could be valid grounds of application. In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

13.  Having considered the Request, the Director’s 2018 Notice and the Board’s Decision, and having rigorously examined the 2025 Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence. In his Request, the Applicant raised new grounds of claim different from his previous claims. These grounds, if accepted, could constitute significant change of circumstances. However, for reasons as summarised in paragraphs 6 to 10 above, the immigration officer rejected his evidence as fabrication. On the evidence as presented by the Applicant, it is open to the immigration officer to reject his evidence. These are finding of facts solely for the immigration officer, which the court may not intervene. The immigration officer took into account the finding of the Board in the previous claim that state protection and internal relocation would be available to the Applicant on his return to Bangladesh. He also reviewed updated COI and found there is no indication of any significant change of country conditions in Bangladesh that would render state protection or internal relocation unavailable. He therefore came to the conclusion that there was no significant change in circumstance since the previous claim was finally determined. These findings are essentially mixed findings of fact and of the law.  Insofar as these are findings of law, this Court could detect no error of law in the 2025 Notice. Insofar as these are findings of fact, they are solely within the province of the immigration officer which the Court in a judicial review may not interfere, save for errors of law, procedural unfairness and irrationality in the 2021 Notice. The Court could detect no errors of law or procedural unfairness in the 2025 Notice. The 2025 Notice does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospect of success.

Overall scrutiny

14.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2025 Notice of Decision is refused.

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