AKHAND SHIMUL v. DIRECTOR OF IMMIGRATION

HCAL 1724/2025

[2025] HKCFI 5202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1724 of 2025

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

Following;

	consideration of the documents only;          or
	consideration of the documents and oral submissions by the Applicant 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 4 August 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 4 July 2025 (the “Notice”) refusing his request to make a subsequent claim (the “Request”).

2.  The Applicant is a Bangladeshi national. He was arrested in April 2014 for illegally remaining in Hong Kong. He claimed to have sneaked into Hong Kong from the Mainland on 9 December 2012. He submitted a non-refoulement claim form dated 28 July 2015 (the “previous claim”). His previous claim was refused by the Director on all four applicable grounds under the Unified Screening Mechanism (the “USM”). His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) which also had concerns about the reliability and credibility of his evidence. He exhausted all avenues of judicial review and appeal on 28 October 2024 with the Court of Final Appeal dismissing his application for leave to appeal the decision of the Court of Appeal. Then, about three weeks later, he applied by letter dated 18 November 2024 (“Letter-1”) to make a subsequent claim (the “Request”), alleging that he has a new source of harm from a developer group named Bashundhara Group (the “Group”).

The law

3.  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of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a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 his previous claims.

The previous claim

4.  In his previous claim, he said he would be harmed or killed by his paternal uncle and his associates from the Awami League (the “AL”) political party because he was a member of a rival political party, Bangladesh Nationalist Party (the “BNP”) with potential to become a party leader. At the same time, his uncle had a dispute with him over his family land and wanted to use the land dispute as a pretext to eliminate him. The immigration officer found his future risk of harm or death was not likely to materialise if he was returned to his home country and that he could also avoid the risk by internal relocation and seeking state protection. The Board found the Applicant incredible. It did not accept he was a member of the BNP or had any interest or commitment in politics or was being groomed as a leader of the BNP. It did not accept his family had a land dispute with his uncle or was threatened, beaten, slashed by a knife or knives, attacked or otherwise harmed by his uncle, the AL people or anyone. It rejected the entirety of his factual case on which his claim for protection was based. It found he will not face a real risk of being tortured or killed.

The intended subsequent claim

5.  In his intended subsequent claim the Applicant claimed that the Group in association with his uncle intended to occupy his family land and his neighbour’s land to build an apartment and to harm him because of his political profile. He said his mother told him that in February 2024, people from the Group came and told all residents to move as the Group wanted to build a high-rise apartment on the land. His family and his neighbours protested. On 11 or 12 March, people from the Group, along with an AL cadre and his uncle came and told his family and the neighbours to accept the Group’s money and leave without making any problem and that they had the police behind them. The Applicant’s family was warned that as they were BNP supporters they were targeted for their past activities with the BNP. The AL cadre and his gangs brandish pistols and assaulted his mother and brother. His brother was seriously injured on his head and knee. His brother was sent to a local hospital for treatment. On the following day, his brother and sister went to Kali Ganj police station to make a complaint. But the police officers said they could not help because of an “upper level order”.

6.  Towards the end of April 2024, the AL cadre and around a hundred of his followers came to his home to threaten his family members. They gave his family members two weeks to move out. They beat them along with 25 neighbours. After they left, the police arrived and arrested his mother, his brother and 15 injured neighbours. They were given bail after two days.

7.  In early June 2024, the Applicant’s mother told him that the AL cadre, his uncle and the police came to the area to discuss how to vacate the land. They offered to buy the Applicant’s family land, but the Applicant’s family did not want to sell. The police warned them and the neighbours that if they did not agree to sell, the police would torture them, frame fake cases against them and put them in jail.

8.  In early July 2024, the Applicant’s mother told the Applicant by video call that the AL members attacked his family members because they desperately wanted to clear the land and earn a huge commission. On 25 July 2024, the Applicant called his sister who told him that the AL targeted him but as he was not in Bangladesh they harmed his family members.

9.  On 28 January 2025, the Immigration Department received the Applicant’s letter (“Letter‑2”) annexing 23 pages of additional information in support of his intended subsequent claim. The information was about the revolution by students and the public on 5 August 2024, which wiped out the regime by the AL party. The BNP is now in power. The materials included articles analyzing the protest and its cause.

10.  The immigration officer considered his Request, the additional information submitted in Letter-2, his colleagues finding in the previous claim and the Board’s decision. He took the view that the intended subsequent claim is fundamentally identical to his previous claim which had been rejected by the Board. The source of fear is the same, except that the Applicant tried to embellish his claim with the addition of the Group which he believed was associated with his uncle. The officer did not consider that as a significant change of circumstance.

11.  The supporting documents provided by the Applicant were general news about the situation of Bangladesh under the interim government during that particular period. The contents therein were neither related to the Applicant personally nor could they show that his stated fear and risk from his uncle had materialized and that he would be subjected to the proscribed harm. Two of the articles, Preliminary Analysis of Recent Protest and Unrest in Bangladesh published by the Office of the High Commissioner for Human Rights (UN Human Rights) on 16 August 2024 and Bangladesh’s new ruler is in race against time published by the Economist on 14 August 2024, showed that the situation in Bangladesh has been stabilizing since the interim government took charge in early August 2024.

12.  The immigration officer also took a slightly optimistic view of the police stance in the land dispute in that instead of arresting the Applicant’s family members, the police together with the Applicant’s uncle came to discuss settlement and compensation with the Applicant’s family and the neighbours and thereafter nothing adverse happened. The immigration officer found Bangladesh has been changing for the better under the leadership of Muhammad Yunnis, a Nobel peace laureate and social entrepreneur. He was not satisfied that there was a significant change of circumstance in Bangladesh that would render state protection unavailable to the Applicant.

13.  In conclusion, the immigration officer was not satisfied that the Applicant has proved the requirements for making a subsequent claim under section 37ZO of the Immigration Ordinance. Hence, he issued the 2025 Notice on behalf of the Director to refuse the Applicant’s Request for making a subsequent claim.

Grounds for judicial review

14.  The Applicant did not advance any grounds of application in his Form 86. After the legal principles applicable to judicial review and to the making of a subsequent claim had been explained to him, the Applicant said he had no complaint above errors of law, procedural unfairness or irrationality in the Decision. However, in his supporting affirmation, he raised the following grounds:

“(1) Procedural Impropriety) Failure to properly apply paragraph 2 of the UN Committee against Torture General Comment No 2 whereby satisfaction of a national states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, the [Board] and the Director Decision which focused on whether such reliefs showed merely signs of positive improvement.

(2) Procedural Impropriety) Failure to conduct sufficient inquiry into the relevant country of origin condition. …

(3) Procedural Impropriety/Irrationality) Failure to reasons for assessment of lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 Risk. …

(4) Procedural Impropriety) The Director Failure to consider our fear that my enemies still fear for me, I could not return to my country …

(5) Errors/Misdirection in law) The Director failure to assess my fear and my country of origin conditions that whereas I would return I would not face a terrible risk upon refoulement, my life is under risk from my enemies so that I would not agree to the decision of the Director so that I would review my decision.

(6) No sufficient basis to conclude that my family members would not to be at risk of being subjected to torture and or [cruel, inhuman, degrading treatment or punishment] …

(7) Procedural Impropriety) Failure to consider psychological harm …

(8) Error/Misdirection in law: Incorrect examination of the facts in relation to legal principles viz a purported requirement to “exhaust all avenues” when reporting public misconduct and/or corruption.

(9) Error/Misdirection in law) In the decision failed to give a proper explanation that the authority of my country would be able to protect me from my enemies, it may not involve any Government deprived but as a person I am still will face real risk from my enemies …

(10) Procedural impropriety and/ or illegality) Abdication of duty for failing to properly examine my claim. We will face terrible risks in my country, the condition of my country is not stable, my children and I will be in danger upon refoulement.

(11) The Director failed to consider the supporting documents I had submitted to support my claim, and showing the country’s condition is still not stable for free of risk of my life.”

In his written submission filed on 28 August 2025, the Applicant said he is now married with an Indonesian woman and has a son. He repeated the above grounds

15.  These grounds are all in general terms and lacking in specificity or particulars. The Applicant said someone prepared these grounds for him based on what he told that person. He said he understood those grounds. But when asked for particulars, he was wholly unable to respond. All these grounds are in effect challenges of the finding of fact of the Board or the Director in the previous claim. Those decisions are final and beyond challenge. Under Ground (6), the Applicant complained that there was no basis to conclude that his family members would not be at risk of being subjected to torture. No decision had been made, whether by the Board or the Director whether his family members would be at risk of harm as they were not claimants in the previous claim. Under Ground (7), the Applicant complained about failure to consider the psychological harm he suffered. That issue had never been raised in his previous claim also. None of these eleven grounds could be arguable grounds of judicial review.

Overall scrutiny

16.  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 of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence. The immigration officer observed a very high standard of fairness. He advised the Applicant on the law and procedure in prosecuting his Request and referred his claim to the Duty Lawyer Service which subsequently acted for him. On any objective view, there is no new evidence or information which suggest that there has been a significant change in circumstance since his previous claim was finally determined and that the change, if any, when taken together with the material previously submitted in support of his previous claim, would give the subsequent claim a realistic prospect of success. These are finding of facts which are exclusively within the province of the Director to make, which the Court on 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. Furthermore, the subsequent claim is built on the previous claim which the Board found was fictitious. The Board rejected the entirety of the Applicant’s factual case on which his claim for protection was based. It did not accept he was a member or supporters of the BNP, ever involved or interested in politics and being groomed to be a leader of the BNP. It rejected his story about having a land dispute with his uncle and was threatened, attacked and injured. His previous claim is fictitious. It is difficult to see how the additional evidence added to the fiction could turn the fiction into a reality. The proposed judicial review has no realistic prospect of success.

Conclusion

17.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 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