MD BABU MIA v. DIRECTOR OF IMMIGRATION

HCAL 384/2021

[2026] HKCFI 705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 384 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Director of Immigration’s decision dated 9 March 2021”.

2.   The applicant’s application for leave to apply for judicial review be dismissed.

3.   A Restricted Proceedings Order be made against the applicant in terms of the following:-

  (1)   The applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the applicant in the High Court, or any appeal, including this Order, without the leave of the Court of First Instance;

  (2)   All applications for leave under paragraph (1) shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List;

  (3)   At least 7 days before filing any application for leave under paragraph (1), the applicant do notify in writing each intended defendant or respondent of his intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the applicant from any such intended defendant or respondent, that the applicant do file a copy of each such response together with his said application for leave;

  (4)   Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the court written representations regarding the same;

  (5)   All applications made pursuant to this Order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the designated Judge should otherwise direct;

  (6)   If the applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed;

  (7)   Notice of each decision by the designated Judge made pursuant to this Order be given in writing to the applicant and to each intended defendant or respondent named in the fresh proceedings;

  (8)   Whether or not any fresh proceedings are brought to the notice of the designated Judge, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly;

  (9)   No more than one leave application under paragraph (1) may be made by the applicant within any period of 3 months;

  (10)   No appeal shall lie from a decision of the Judge granting or refusing leave within this Order, unless leave to appeal has been granted by the Judge;

  (11)   This Order shall cease to have effect at the end of 5 years from the date of this Order; and

  (12)   A copy of this Order shall be sent to the Registrar of the High Court.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 17 March 2021 and filed on 18 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 9 March 2021 without identifying the decision-maker.

2.  The Director of Immigration (“the Director”) made a decision dated 9 March 2021 (“the Director’s 2021 Decision”) refusing the applicant’s request (“the Request”) for making a subsequent claim for non-refoulement protection under the Unified Screening Mechanism (“the USM”).  The Request was made by way of a letter dated 20 December 2019.

3.  It is clear that the decision in respect of which relief is sought in the Leave Application is the Director’s 2021 Decision.

Amendments

4.  In Form 86, the applicant named “Immigration Department” as the putative respondent, when the Director should be so named.

5.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Director’s 2021 Decision. 

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Director of Immigration” and the decision in respect of which relief is sought is amended to “Director of Immigration’s decision dated 9 March 2021”.

Procedural history of the applicant’s previous non-refoulement claim

7.  The applicant is a male Bangladeshi who was arrested by the Hong Kong police on 12 May 2009 for overstaying in Hong Kong.  He made his first claim for non-refoulement protection by way of a written signification dated 15 May 2009.

8.  The Director rejected the applicant’s non-refoulement claim on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the USM on 27 May 2015, and further rejected the applicant’s claim on the ground of BOR 2 Risk[4] on 26 October 2016 (collectively “the Director’s 2015/2016 Decisions”).  The Board rejected the applicant’s appeal/petition against the Director’s 2015/2016 Decisions on all the applicable grounds under the USM on 2 June 2017 (“the Board’s Decision”).

9.  The applicant applied for leave to apply for judicial review in respect of the Board’s Decision on 13 June 2017 (“the First Leave Application”).  The First Leave Application was refused by the Court of First Instance (“the CFI”) on 8 September 2017[5] (“the CFI’s 2017 Decision”).

10.  The applicant again applied for leave to apply for judicial review in respect of the Board’s Decision on 17 November 2017 (“the Second Leave Application”).  The Second Leave Application was dismissed by the CFI on 1 June 2018[6] (“the CFI’s 2018 Decision”) as an abuse of the court process.

11.  The applicant appealed against the CFI’s 2018 Decision to the Court of Appeal and the appeal was dismissed on 12 December 2018.

12.  On 13 December 2018, the applicant filed a notice of motion seeking leave to appeal to the Court of Final Appeal.  The applicant’s notice of motion was dismissed by the Court of Appeal on 20 February 2019.  On 8 March 2019, the applicant applied for leave from the Court of Final Appeal to appeal against the decision of the Court of Appeal and the application was dismissed by the Court of Final Appeal on 17 December 2019.

The applicant’s subsequent claim

13.  On 20 December 2019 (3 days after the Court of Final Appeal’s dismissal as aforesaid), the applicant made the Request and continued to claim that he would be at risk of harm from people of the Awami League (“AL”) and submitted eight factors for the Director’s consideration as mentioned in paragraph 9 of the Director’s 2021 Decision.

14.  The applicant subsequently wrote to the Immigration Department on 27 December 2019 to cancel all his non-refoulement claim as it was safe for him to go back to his home country.

15.  However, by his letter dated 27 February 2019 (which should in fact be dated 27 February 2020 instead), the applicant requested to re-open his claim as his life was still in danger in Bangladesh.  

16.  By his letter dated 23 March 2020, the applicant informed the Director that he did not have any new evidence to submit in support of his making of subsequent claim because he could not find any way to get the documents as all his family were hiding from his enemies.

17.  On 17 September 2020, the applicant indicated his intention to the Director to seek publicly-funded legal assistance.

18.  On 15 December 2020, a duty lawyer from the Duty Lawyer Service (“the DLS”) wrote to the Director and raised that the applicant could not return to Bangladesh.  He made clarification of the applicant’s Request and provided additional information on the applicant’s behalf.

19.  After consideration of the applicant’s previous non-refoulement claim including the findings of credibility and facts made by the case officer of the Immigration Department and the Board, the Request, and the additional information in support of his Request submitted by the legal representative of the applicant, the Director refused the Request by way of the Director’s 2021 Decision.

The applicant’s case

20.  In his first claim for non-refoulement protection, the applicant claimed that if returned to Bangladesh, he would be harmed or killed by people of AL for being a supporter of Bangladesh Nationalist Party.  

21.  The applicant’s claim in the Request was largely based on the previous claim of threat from AL.  His alleged new risk of harm originated from the false charges (ie fighting and terrorism cases) made by his enemies against him.

Oral hearing

22.  This court fixed an oral hearing of the Leave Application on 13 January 2026 and the applicant was present at the hearing. 

23.  At the hearing, when this court asked the applicant for the grounds of his intended judicial review, he merely said that he was ready to return to his home country provided that the situation there became better.  He also said that the application was actually made by a friend and he did not know the details of his claim.

24.  Since the applicant was making the same claim again, this court had sent a letter dated 10 December 2025 to invite him to file evidence and/or submissions, if any, to oppose any Restricted Proceedings Order (“RPO”) which might be made against him.

25.  At the oral hearing, this court told the applicant that a RPO might be ordered against him and he was asked to make his submissions concerning the proposed RPO.  However, the applicant confirmed that he had nothing to say in respect of the proposed RPO and he had no objection to a RPO being made against him as he was prepared to go back. 

Grounds for judicial review

26.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

27.  The applicant did not advance any ground for his intended judicial review in Form 86.  In his supporting affirmation dated 18 March 2021, the applicant alleged that he was a genuine non-refoulement claimant who faced all these dangerous problems, harassment and torture in his country and that the problems were getting more and more life-threatening day after day.  He also complained that the Director rejected his claim without any proper inquiry and without carefully understanding his situation.

28.  The contents as stated above were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Director’s and/or the Board’s decisions.  It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations.

29.  As aforesaid, the applicant failed to elaborate on any of the grounds that were asserted in his affirmation or advance any ground for judicial review at the oral hearing before this court.

Discussion

30.  First of all, the applicant’s assertion that the Director rejected his claim without any proper inquiry and without carefully understanding his situation was totally without any specificity.

31.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

32.  Thus, none of the grounds that were contained in his supporting affirmation could establish any valid ground to challenge the Director’s 2021 Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

33.  In any event, the Director did consider carefully the applicant’s previous claim and the new matters raised in the subsequent claim.  The Director gave very detailed analysis and reasoning in rejecting the Request in the Director’s 2021 Decision.  The allegation that the rejection was made without any proper inquiry and without carefully understanding his situation is totally unfounded.

34.  The making of a subsequent claim is stipulated by Section 37ZO of the Immigration Ordinance, Cap 115, which reads as follows:-

“Limitation on subsequent claim

(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.”

35.  It is clear that the Director had fully complied with the above provisions when considering the Request.

36.  The Director gave detailed reasons in paragraphs 8 to 16 of the Director’s 2021 Decision for its conclusion not to accept that the applicant’s alleged risk of harm in the Request upon his return to Bangladesh constituted a significant change of circumstances warranting his making of a subsequent claim.  This court agrees with the Director’s conclusion and the reasoning supporting it.  Thus, there was no significant change of circumstances that would enable the applicant to make a subsequent claim.

37.  The Director also considered the country of origin information (“COI”) provided by the applicant in the Request.  The Director found that even if the submitted COI showed a significant change in the country condition in Bangladesh after the applicant’s previous claim was finally determined, such change, when taken together with other materials submitted in his Request and those submitted in support of his previous claim, would not give the intended subsequent claim a realistic prospect of success.  The applicant’s Request was therefore refused.

38.  These were findings of facts within the exclusive ambit of the Director, and this court in a judicial review will not interfere with them save when such findings involved errors of law, procedural unfairness or irrationality. 

39.  Having considered the applicant’s Request, and having rigorously examined the Director’s 2021 Decision with anxious scrutiny, this court is satisfied that the Director 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 analyzed the evidence with due care.  The Director observed a very high standard of fairness.  This court finds no errors of law in the Director’s 2021 Decision or procedural unfairness in the making of that decision.  The Director’s 2021 Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational. 

40.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Restricted Proceedings Order

41.  It is clear that the applicant has abused the judicial process by making the Leave Application, as the applicant’s non-refoulement claim had already been determined by the Director’s 2015/2016 Decisions, the Board’s Decision, the CFI’s 2017 Decision and the CFI’s 2018 Decision.

42.  The applicant had also exhausted all the available means of appeal, including appealing to the Court of Appeal in respect of the Second Leave Application and seeking leave to appeal to the Court of Final Appeal.  His appeal against the Court of Appeal’s decision was finally disposed of by the Court of Final Appeal on 17 December 2019.

43.  The court has inherent jurisdiction to prevent an applicant from abusing its process by making an extended order against such an applicant (see Ng Yat Chi v Max Share Ltd and Another [2005] 1 HKLRD 473).

44.  RPO is an appropriate measure to prevent abuses of the court’s process by non-refoulement claimants (see Wahyuni v Director of Immigration [2021] HKCFI 1991).

45.  However, this court has to exercise its discretion by reference to the circumstances of the case and the principle of proportionality.  A RPO is in substance an injunction and this court has the power to grant an injunction to safeguard the proper administration of justice.  At the same time, the exercise of such power has to be balanced against a litigant’s right of access to the court (see The Secretary for Justice v Yuen Oi Yee Lisa [2006] 1 HKLRD 679).

46.  Generally, such an order is called for when a vexatious litigant has already involved the appellate process unsuccessfully but persisted by re-litigating his wholly unmeritorious case all over again (see Siti Khotimah v Director of Immigration [2022] HKCA 327 and Indah v Director of Immigration [2022] HKCA 564).

47.  This court has called upon the applicant to show cause why a RPO should not be made against him.  As aforesaid, the applicant did not make any submission regarding the proposed RPO which might be made against him.  He actually did not object to a RPO being made against him.

48.  This court finds that the applicant is indeed a vexatious litigant who has already involved the appellate process unsuccessfully but persisted by re-litigating his wholly unmeritorious case all over again, and a RPO should be ordered against him to prevent him from abusing the judicial process endlessly.

49.  Accordingly, this court makes a RPO against the applicant in the terms as detailed in paragraph 3 of the orders abovementioned.

Conclusion

50.  For reasons aforesaid, the Leave Application is dismissed and a RPO in the aforesaid terms is made against the applicant. 

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