AHMED MOHAMMAD SUJON v. DIRECTOR OF IMMIGRATION

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, “Director of Immigration” be deleted as the putative interested party.

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 and filed on 27 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 9 October 2020 (“the Director’s 2020 Decision”).

2.  In the Director’s 2020 Decision, the Director refused 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 15 June 2020.

Amendment

3.  The applicant named the Director as both the putative respondent and the putative interested party in Form 86.  However, it is not necessary to name the Director as the putative interested party when the Director was already named as the putative respondent.

4.  Thus, on this court’s own motion, “Director of Immigration” is deleted as the putative interested party.

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

5.  The applicant is a male Bangladeshi who sneaked into Hong Kong illegally on 19 June 2014 and was arrested by the Hong Kong police on the same day.  He made his first claim for non-refoulement protection by way of a written representation on 22 June 2014.

6.  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 20 May 2016, and further rejected the applicant’s claim on the ground of BOR 2 Risk[4] on 25 July 2017 (collectively “the Director’s 2016/2017 Decisions”).  The Torture Claims Appeal Board (“the Board”) rejected the applicant’s appeal/petition against the Director’s 2016/2017 Decisions on all the applicable grounds under the USM on 24 November 2017 (“the Board’s Decision”).

7.  The applicant applied for leave to apply for judicial review in respect of the Director’s 2016/2017 Decisions and the Board’s Decision on 7 December 2017 (“the Previous Leave Application”).  The Previous Leave Application was refused by the Court of First Instance (“the CFI”) on 8 June 2018[5] (“the CFI’s 2018 Decision”).

8.  The applicant appealed against the CFI’s 2018 Decision to the Court of Appeal and the appeal was dismissed on 13 November 2018[6].

9.  On 21 November 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 25 January 2019[7].  The applicant’s application for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Final Appeal on 8 June 2020.

The applicant’s subsequent claim

10.  Only 7 days after the applicant’s application for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Final Appeal, on 15 June 2020, the applicant made the Request and continued to claim that he would be at risk of harm from members of the Awami League (“AL”) if he were to be refouled to Bangladesh.

11.  By way of his letter dated 10 July 2020, the applicant stated that he could not provide any supporting documents at that time because of the coronavirus situation in his home country. He also raised his request to the Director to seek publicly-funded legal assistance provided by the Duty Lawyer Service (“the DLS”).

12.  On 21 September 2020, the DLS wrote to inform the Director that they would represent the applicant in his application for subsequent claim and provided the applicant’s updated information and supporting documents.

13.  Having carefully assessed the Request based on the available information, including the applicant’s previous non-refoulement claim, the Director refused the Request by way of the Director’s 2020 Decision.

The applicant’s case

14.  In his first claim for non-refoulement protection, the applicant claimed that if returned to Bangladesh, he would be harmed or killed by members of AL because he was a member of the Bangladesh Nationalist Party (“BNP”).  He also claimed that there were framed cases against him and an arrest warrant was issued in respect of the alleged offences.

15.  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 attacks on his family and his father being framed with the murder of a former AL worker.

Oral hearings

16.  At the oral hearing before this court on 13 November 2025, the applicant claimed that his subsequent claim was a new claim as his case happened in 2020 when his enemies set fire to his home.  However, he confirmed that the enemies setting fire to his home were the same enemies in Bangladesh, and they were still finding him and harassed his family in Bangladesh.  The applicant also admitted that the problem was the same but the time was different.

17.  When this court told him that a Restricted Proceedings Order (“RPO”) might be made against him and he would be allowed to make submission regarding the proposed RPO, the applicant asked for time to prepare his submission.  The hearing was hence adjourned.

18.  When the notice of hearing dated 28 November 2025 for the adjourned hearing on 13 January 2026 was served on the applicant, a copy of this court’s directions was also served together with the notice of hearing, which required the applicant to file evidence and/or submissions to oppose any RPO on or before 8 January 2026.  However, the applicant did not file any written submission himself by the deadline.  Instead, a letter dated 29 December 2025 written by the applicant’s wife in Chinese was sent to this court.

19.  At the resumed hearing on 13 January 2026, the applicant confirmed that he would rely on the letter sent by his wife as his submission.  He added that he had been living in Hong Kong for some times and had already married to a Hong Kong lady.  He wished to spend his life in Hong Kong.  If a RPO was made, it would prevent him from staying with her.  If necessary, he could give an undertaking that he would not make application repeating the same matter.  He also said that the situation in Bangladesh was very bad and there was no election taking place.

Grounds for judicial review

20.  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).

21.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 27 October 2020.  The applicant did not raise any valid grounds for the intended judicial review at the two oral hearings before this court either.

22.  As to his wife’s letter, which the applicant relied on as submission against the proposed RPO, his wife just laid out the problems that the applicant’s family was facing, including medical issues of their daughter, as well as financial and medical issues of herself.  It also stated that the Director rejected the applicant’s application for a dependent visa in August 2023.  In sum, the applicant’s wife was asking this court for mercy to let the applicant stay in Hong Kong for family union.

Discussion

23.  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.”

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

25.  The Director gave detailed reasons in paragraphs 17 to 25 of the Director’s 2020 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.

26.  The Director also considered the documents provided by the applicant through the DLS in the Request.  However, the Director found that even if assuming that there had been a significant change of circumstances in the country condition in Bangladesh, such change, when taken together with the materials previously submitted in support of his previous claim, would not give his intended subsequent claim a realistic prospect of success.

27.  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.

28.  Having considered the Request, and having rigorously examined the Director’s 2020 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 2020 Decision or procedural unfairness in the making of that decision.  The Director’s 2020 Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational. 

29.  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

30.  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 2016/2017 Decisions, the Board’s Decision and the CFI’s 2018 Decision.

31.  The applicant had also exhausted all the available means of appeal, including appealing to the Court of Appeal in respect of the Previous Leave Application and seeking leave to appeal to the Court of Final Appeal.  His appeal against the Court of Appeal’s decision was finally dismissed by the Court of Final Appeal on 8 June 2020.

32.  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).

33.  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).

34.  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).

35.  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).

36.  This court has called upon the applicant to show cause why a RPO should not be made against him.  However, what the applicant told this court at the hearing on 13 January 2026 and what were written in the letter by his wife dated 29 December 2025 cannot amount to any valid ground to oppose the granting of a RPO.

37.  This court noted the problems of the applicant’s family and the difficulties that his family might face if he was returned to Bangladesh.  However, as held by the Court of Final Appeal in Comilang & Ors v Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong. Thus, this court finds that separation with his close family was not a basis on which the applicant could establish his non-refoulement claim.  By the same token, such rights cannot be used to oppose the granting of a RPO, which is to ensure that the court’s process would not be abused by unmeritorious non-refoulement claimants.

38.  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. An undertaking as suggested by the applicant would not be good enough to prevent him from making repeated applications.

39.  Accordingly, this court makes a RPO against the applicant in the terms as detailed in paragraph 3 of the orders stated above.

Conclusion

40.  For reasons aforesaid, the Leave Application is dismissed and a RPO 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