BADAL DAS v. DIRECTOR OF IMMIGRATION

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

Following;

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 1 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 21 August 2025 (the “Notice”) refusing his request to make a subsequent claim (the “Request”).

2.  The Applicant is a Bangladeshi national. He arrived in Hong Kong on 17 July 2006 and overstayed since 24 July 2006. He made a non-refoulement claim by written submission on 19 March 2009 by written representation (the “previous claim”). His previous claim had run its full course ending with the Court of Final Appeal dismissing his application for leave to appeal the Court of Appeal’s decision on 6 December 2024 refusing his appeal against this Court’s decision refusing him leave to apply for judicial review of the Board’s decision dismissing his appeal against the Director’s refusal of his claim for non-refoulement protection.

3.  Four days later, he made the Request for making a subsequent claim by letter dated 10 December 2024 (“Letter-1”). He also asked for legal assistance in prosecuting his Request. His case was referred to the Duty Lawyer Service (the “DLS”), but DLS refused to act for him. In the immigration officer’s letter dated 20 February 2025 in English with Bengali translation, the Applicant was informed of the decision of the DLS and advised to arrange his legal representation if he saw fit. He was informed of the requirements for making a subsequent claim and reminded to provide further evidence, if any, on or before 6 March 2025. He was also informed that if the department did not hear from him on or before the deadline, his Request would be assessed based on all available information only. He was also advised of the procedure in making extension of time to comply. On 5 March 2025, the Applicant submitted a letter saying that he could not submit any document (“Letter-2”). By a letter dated 2 April 2025 (“Letter-3”), submitted about a month after the deadline, he furnished some documents. After considering all available information and evidence, the immigration officer on behalf of the Director issued the Notice to reject his Request. The Applicant now applies for leave to apply for judicial review of the Notice.

The Applicant’s previous claim

4.  The Applicant’s personal background, the factual background leading to his previous claim, the basis of her 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 that if returned to Bangladesh, he will: (1) be harmed or killed by Jakir and his people (“his enemies”) from the Bangladesh National Party (“BNP”) for being unable to repay a loan borrowed from Jakir in 2004; and (2) be harmed by Muslims in his home village (the “Muslims”) for being a Hindu in the minority.

5.  In the previous claim, the Board and the immigration officer assessed the level of risk of harm from his enemies and from the Muslims upon his return to Bangladesh to be low; and that internal relocation and reasonable state protection would be available to him upon his return to Bangladesh[2] to negate or avoid the harm.

Additional information in support of the subsequent claim

6.  In Letter-1, the Applicant reiterated his previous claim and said he has a “new problem” in Bangladesh, but did not describe what that new problem was. In Letter-2, he claimed he wanted to stay in Hong Kong because he had a “new case” in his home country. Again, he did not describe what his new case was. These two letters provided no details about the Applicant’s “new problem” or “new case”.

7.  In Letter-3, he produced four pages of photographs with a caption relating to “Top terrorist Zakir Khan”. He also furnished some documents in Bengali dated between 3 November 2024 and 22 March 2025. These documents include copies of what purport to be a First Information Report, a charge sheet, an order form for Magistrates’ Record, an arrest warrant and some letters.

8.  The documents provided by the Applicant in Letter 3 are in Bengali. The immigration officer obtained English translation of the documents. The documents suggest that his enemies had filed a court case against him and his son in Bangladesh. That case originated from his previous monetary dispute he had with his enemies. No details regarding the previous case and the court’s decision were provided.

The Director’s decision in the 2025 Notice

9.  The Applicant’s Letter-1 and Letter-2 provided absolutely no particulars of his new problem or new case. Other than providing some documents and four pages of photographs for the immigration officer to work on, he gave no particulars of his new problem or new case. The documents revealed his enemies had previously filed a case against him in a monetary dispute and a sentence of 8 years’ imprisonment was passed on him and an arrest warrant was issued against him. There are no details regarding the previous case and the court’s decision. The immigration officer assessed his case on the basis of the documents and as if they were authentic. She found that the new false case originated from the dispute in the previous claim. She noted that her colleague in assessing the previous claim had found that the Constitution of Bangladesh upholds that “All citizens are equal before the law and are entitled to equal protection of the law.” She therefore found, even if the Applicant’s enemies had filed a false case against him as alleged in the Request and regardless of whether they were still looking for him in his home country, the source of fear remains the same. His Request is merely a reiteration or continuation of his previous claim. She also found there is no evidence to suggest that the Applicant would be deprived of state protection and denied of his legal rights in his home country. He could seek protection from the local authorities upon his return to Bangladesh and access justice. Since his source of fear in the intended subsequent claim remains the same and his Request is merely a reiteration or continuation of his previous claim, there is no evidence to demonstrate a significant change of circumstances. The immigration officer also noted that the incident mentioned in the documents occurred on 3 November 2024 while the Applicant was in Hong Kong. She therefore found the Applicant has a strong defence of alibi.

10.  As for the photographs, the immigration officer accepted that they show a destroyed location with an injured man and a woman lying in a bed. In the absence of submission as to what the photographs were intended to show, the immigration officer could not make anything out of it. Hence, she found the photographs do not support any alleged significant change of circumstances.

11.  Lastly, the immigration officer found from updated country of origin information that there is no change in the country situation in Bangladesh as to result in state protection being rendered unavailable for the Applicant.

12.  In conclusion, the officer found the Applicant had failed to prove (i) that there has been a significant change of circumstances since the previous claim was finally determined or withdrawn and (ii) 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. Hence, she refused the Applicant’s Request.

Grounds for judicial review

13.  At the hearing, after the legal principles applicable to judicial review and the making of a subsequent claim were explained to him, the Applicant produced four pages of photographs, some original court documents and letters in English. He confirmed that these documents were similar to those which he had produced in Letter‑3 to the immigration officer, except that these are in English while those are in Bengali. He submitted that he had no family in Bangladesh, his house was destroyed, there is no government in Bangladesh and he will be harassed if returned to Bangladesh because he is a Hindu. He said he wished to stay longer in Hong Kong, he is married to a Hong Kong Chinese citizen and is applying for a dependent visa to stay in Hong Kong. Other than these, he had no complaint about error of law, procedural unfairness or irrationality in the decision in the Notice. None of his submissions constitutes a valid ground of application.

14.  The Applicant advanced by way of written submission dated 16 September 2025 the following grounds of application:

(1)   He disagrees with the decision of the Director and the adjudicator of the Torture Claim Appeal Board. “[He does] not think [his] case be so fast determined”.

(2)   “Without knowing through how case was determined my case before them I apply again judicial review HCAL 1954/2025. It is not easy for me to appeal again if this case also determined faster. I believe there should have been a proper and fair mechanism that allows unrepresented litigant to understand more about their claim.

(3)   “I was never provided with proper legal and language assistance with my limitation in terms of resources”;

(4)   The Director is in breach of procedural fairness in “unlawfully fettered his discretion by refused before my appeal on the grounds that they did not satisfy the requirements”;

(5)   “My claim also the discriminatory act of authorities towards non-refoulement claimants merely on the basis of quick disposed of non Refoulement case is unacceptable and is determinate to spirit of judicial system.”

15.  He said these grounds were written by his friend as he does not understand English. He could not provide particulars of these grounds or elaborate on them. He repeatedly said if he did not put forward these grounds, he will be detained by the Immigration Department next time he reported for his recognisance.

16.  Ground (1): His disagreement with the immigration officer’s decision is essentially a challenge of the finding of fact by the officer which is not permissible, save for errors of law, procedural unfairness or irrationality in the decision. He has confirmed there are no such vitiating elements in the Notice. The deadline for submission of information was 6 March 2025. It was not until 2 April 2025 that he submitted his Letter-3. It was overdue by almost a month. The immigration officer, nevertheless, took the information into account. She did not promptly dispose of his Request on 6 March 2025. She took until 21 August 2025, almost half a year later that she issued the Notice. The time taken to issue the Notice could not be described as “fast” or is it prima facie evidence that the decision in the Notice was not properly made. His underlying reason for complaint is that were the decision issued later, he could have obtained his dependent visa. That could not constitute a valid attack on the decision in the Notice. There is no substance in his complaint about quick disposal.

17.  Ground (3): In Karamjit Singh[3], the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. The Applicant has been explained by letter in English with Bengali translation about the procedure and requirements for making a subsequent claim. Apparently, he understood the procedure and the time limit. He was given indulgence even though he furnished information late. The high standard of fairness as regards provision of language assistance has been discharged. It was his choice to come to Hong Kong for protection where English and Chinese are the only two official languages. He has to find means to coup with his language disability. He was able to find assistance from his fellow Bangladeshi to communicate with the Immigration Department and to prepare his written submission.

18.  The Applicant had legal representation before the Director in prosecuting his original claim. As was held by the Court of Appeal in Re Zafar Muazam[4], Re Zunariyah[5], Re Zahid Abbas[6], Re Tariq Farhan[7], and Re Lopchan Subash[8], neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[9] nor the judgment of FB v. Director of Immigration[10] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. As mentioned above, he has been explained by letter in English with Bengali translation about the procedure and requirements for making a subsequent claim. Apparently, he understood the procedure and the time limit. The high standard of fairness as regards provision of legal assistance has also been discharged.

19.  Ground (3): That the Applicant did not know how the decision was made because the Notice was not accompanied by Bengali translation. Even if the Notice was accompanied by a translation that could not have changed the decision. As explained above, he had adequate language and legal assistance as required in the circumstances.

20.  Grounds (4) and (5): The Applicant is in effect alleging bad faith on the part of the immigration in rejecting his Request for reason of quick disposal and discrimination against asylum seekers. This is just a bare allegation without evidential support. The Court will re-visit this issue in its overall scrutiny of the Notice.

21.  In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

22.  Having considered the Request, the Board’s Decision in the previous claim and having rigorously examined the 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; correctly identified the issues; and properly analysed the evidence. The immigration officer observed a very high standard of fairness. She advised the Applicant on the law and procedure in prosecuting her Request and referred his claim to the Duty Lawyer Service, though the DLS refused to act for him.

23.  Despite he had been duly advised on the law and procedure, he did not properly present a case of change in circumstances. He did not inform the immigration officer what his new problem and new case are. He just produced a bundle of documents and leave it to the immigration officer to construct a case for him. In the due discharge of the duty of joint endeavour, the officer assessed his new problem and new case on the basis of the documents he submitted and as if they were authentic. She found his source of fear in the intended subsequent claim remains the same and his Request is merely a reiteration or continuation of his previous claim. She could find no evidence of any significant change of circumstances since his previous claim was finally determined and that the change when taken together with the material previously submitted in support of the previous claim, would give the intended subsequent claim a realistic prospect of success. The Applicant’s failure is obvious. These are finding of facts which are exclusively within the province of the Director to make, which the Court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. This Court could detect no error of law in the Notice. The Notice does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospect of success.

Conclusion

24.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s Notice 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