Masud v. Director of Immigration

HCAL 2441/2020

[2026] HKCFI 329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2441 of 2020

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

Following:

Order by Deputy High Court Judge To:

1.  The Form 86 was amended on the Court’s own motion;

2.  Leave to file the amended leave application out of time be allowed; but

3.  The application for leave to apply for Judicial Review as amended be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 14 December 2020 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 25 November 2020 (the “2020 Notice”) refusing his request to make a subsequent claim (the “Request”).

2.The Applicant had requested an oral hearing.  A hearing on 15 December 2025 was scheduled and a notice of hearing was sent to him by post on 14 November 2025 to his address in Tsim Sha Tsui as stated on his Form 86 and to his updated address at Yau Ma Tei discovered from the Immigration Department on 16 October 2025.  The notice of hearing has not been returned through the post.  The Applicant had never informed the Court of any change of address since filing his Form 86.  There is nothing to suggest that he had not received neither notice of hearing.  One attempt was made in the afternoon of 12 December 2025 to contact him by telephone to remind him of the hearing, but the call was not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice.  He did not appear at the hearing.  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.Enquiries revealed that the Director had not made any decision dated 25 November 2020 refusing the Applicant’s Request to file a subsequent claim, but had made one such decision dated 18 August 2020. 25 November 2020 was the date of the Director’s reply to the Applicant’s request for a duplicate copy of the Notice of Decision refusing his Request to make a subsequent claim.  However, pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application made to review a decision made on 18 August 2020 would be lodged about one month out of time.  Nevertheless, to enable the real controversy in issue to be determined, on its own motion, the Court amended the date of the Notice to be judicially reviewed to 18 August 2020 to give effect to the Applicant’s intention.

4.In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed with the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ. The delay in this case is not so substantial that leave may be refused on this ground alone without considering merits of the substantive application and as the Applicant’s life is allegedly at stake, the Court took the extra caution to grant him extension of time to file the leave application and to consider merits of the substantive application.

The background

5.The Applicant is a Bangladeshi national who claimed to have entered Hong Kong illegally on 17 July 2014 when he was arrested.  He lodged a non-refoulement claim which was rejected by the Director’s decision in his Notice of Decision (the “2016 Notice”).  His appeal against the 2016 Notice was dismissed by the decision of the Torture Claims Appeal Board/Non-refoulement Petitions Office (the “Board”) dated 18 August 2017 (the “Decision”).  His application for leave to apply for judicial review of that Decision in HCAL 570/2017 was refused on 11 June 2018 by Deputy High Court Judge Woodcock, as she then was.  His appeal against that decision was dismissed by the Court of Appeal in CACV 251/2018 on 21 December 2018.  He exhausted all avenues of appeal on 9 April 2019 when the Court of Appeal refused him leave to appeal to the Court of Final Appeal.  He did not leave Hong Kong.  More than a year later, he made a Request to the Director to make a subsequent claim.  His Request was rejected by the Director’s 2020 Notice.  He now applies for leave to apply for judicial review of that 2020 Notice.

The law

6.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 previous claim

7.In his previous claim, the Applicant claimed that if returned to Bangladesh, he will be harmed or killed by people from the Awami League (“AL”) because of his active participation in a rival political party, namely the Bangladesh Nationalist Party (“BNP”). 

8.The immigration officer in the previous claim found that the ill-treatment inflicted upon him did not attain a minimum level of severity; that there was no indication that the state of Bangladesh was involved in, was indifferent to or provided any form of encouragement to the AL members to kill him.  It found the threats were empty talks uttered with no intention that they be carried out.  He found on the basis of objective country of origin information (“COI”) that the Bangladesh authorities had exercised due diligence to uphold the law.  He also considered the Applicant could avoid the harm and risk of harm from the AL by internal relocation as his AL enemies were localized and there is insufficient evidence to suggest that they will mobilize or use their resources to locate him.

9.On the other hand, the Board found the Applicant unreliable and his alleged events implausible.  It was not persuaded even to the low standard of proof applicable that he would face any risk of ill-treatment by the AL people or the Bangladeshi police, if he were refouled back to Bangladesh.  It found it unlikely that the AL people would still attempt to pursue him who was just a low ranking member of the BNP and did not have influence on others.  Even if they do harm him, he found there was no reason to believe that they would inflict any more serous assaults or injuries upon him than they had before.  It was satisfied that if the Applicant reports to the police or other higher authority, he could expect protection.  It was also of the view that the Applicant could relocate to other cities with large population to avoid the risk of harm.

The intended subsequent claim

10.In the Request, the Applicant claimed that after winning the election, the AL people attacked all BNP members and vandalized his home as they thought he was helping the BNP from Hong Kong with online campaign.  His friend Nur Mirda who attempted to protect his family was severely injured.  Apart from those enemies, he also had a new enemy, Nuru Mridha who is a secretary for the Jubo League (the youth wing of the AL).  Nuru Mridha called him in Hong Kong demanding extortion money and threatening to kill him if he did not pay. 

11.At the interview on 5 June 2020, the Applicant wrote a letter indicating that he wished to submit two police reports relating to two incidents mentioned in his previous claim, which he had forgotten to mention before.  Given the importance of these two reports, the officer found it implausible that he would have forgotten to mention them. However, two months had lapsed since the date of the letter, the Applicant had still not produced the reports.  Anyway, the events referred to in the two reports had been considered in the previous claim.  Whether the reports were produced would make no difference.

12.The immigration officer considered the Applicant’s claim about this new source of harm from Nuru Mridha unconvincing as it would be much more effective and efficient for his new enemy to extort money from local BNP members than from overseas members.  He considered Nuru Mridha’s interest was to pressure him to join the AL.  As for the injuries suffered by his friend and the vandalizing of his home, the immigration officer considered that these events were related to his fear from the AL people, which had already been considered in his previous claim.  He therefore did not consider these events constitute any change of circumstances warranting the making of a subsequent claim. 

13.Having considered all the information and evidence including the findings in the previous claim, the immigration officer came to the view that there had been no significant change of circumstances since the Applicant’s previous claim was finally determined. Even assuming that there had been a significant change of circumstances in the country condition in Bangladesh, the immigration officer considered that such change, when taken together with the materials previously submitted in support of his previous claim would not give the intended subsequent claim a realistic prospect of success.  Hence, he refused the Applicant’s Request.

The legal principles applicable to judicial review

14.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[3].

Grounds for judicial review

15.The Applicant did not advance any grounds for judicial review in his Form 86.  In his supporting affirmation, he made the following complaints:

(1)   the immigration officer unlawfully fattered (sic) his/her discretion by refusing the claim on the grounds that they did not satisfy with the requirements;

(2)   the immigration officer failed to meet the greater care and duty owned (sic) to a self-represented claimant;

(3)   the immigration officer’s decision was unreasonable or irrational or are a result of procedural errors or unfairness;

(4)   the immigration officer acted in a procedurally unfair manner in dealing with the Applicant’s claim;

(5)   it must be kept in mind that the life and limb are in jeopardy and the Applicant’s fundamental human rights not to be subjected to torture in involved;

(6)   the Applicant will face hardship life if he returned to his home country and the immigration officer has significantly relied on the source of news which is not officially recognized or is simply hearsay.

These grounds are just general accusations revolving around the Applicant’s disagreement with the immigration officer’s finding of fact, procedural unfairness and irrationality. They are all lacking in particulars.  Some grounds are not entirely comprehensible even allowing for typographical errors.  The Applicant forwent the opportunity to perfect these grounds by failing to appear.  The Court could only bear these accusations in mind in its overall scrutiny of the 2020 Notice for errors of law, procedural unfairness and irrationality.

Overall scrutiny

16.Having considered the Request, the Director’s 2016 Notice and the Board’s Decisions in the previous claim 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 applicable to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence.  The Court could not detect any error of law in the 2025 Notice.

17.The Board found it unlikely that the AL people would still attempt to pursue the Applicant who was just a low ranking member of the BNP and did not have influence over others.  Both the immigration officer and the Board found state protection and internal relocation are viable options to avoid the risk of harm.  The immigration officer found there is no new evidence or information which suggests that there has been a significant change in circumstance since the Applicant’s 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 his intended subsequent claim a realistic prospect of success.  On any objective view of the evidence and information presented by the Applicant, it is open to the immigration officer to reach that conclusion.  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 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. 

Conclusion

18.For the above reasons, on the Court’s own motion, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2025 Notice of Decision is amended to give effect to his intention; leave to file the leave application is allowed, but the leave application as amended is refused.

Dated the 15^th day of January 2026

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