H K Kohinoor v. Director of Immigration

HCAL 2509/2020

[2026] HKCFI 328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2509 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:  

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 29 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 10 September 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 at his address in Sham Shui Po as stated on his Form 86 and at his updated address discovered from the Immigration Department on 16 October 2025.  The notice of hearing has not been returned through the post.  He 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 either of the notices 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.The Applicant is a Bangladeshi national.  He last arrived in Hong Kong on 25 March 2005 and was permitted to remain as a visitor until 8 April 2005.  He overstayed for five years.  On 22 November 2009, he made a claim for protection under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”).  His claim was rejected by the Director’s decision in his Notice of Decision dated 17 June 2013 (the “2013 Notice”).  His appeal against the Director’s decision was dismissed by the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 6 February 2014 (the “2014 Decision”).  He did not apply for leave to apply for judicial review of the 2014 Decision.  The 2014 Decision on his Torture Claim is now final. 

4.On 27 June 2013, he raised a non-refoulement claim.  His non-refoulement claim was assessed on two applicable grounds under the Unified Screening Mechanism (the “USM”), namely: BOR 3 Risk[1] and Persecution Risk[2].  It was rejected by the Director’s decision in his Notice of Decision dated 29 May 2015 (the “2015 Notice”).  On 1 March 2017, the Director also refused his claim under BOR 2 Risk[3] ground (the “2017 Notice”).  The Applicant’s appeals against the Director’s decisions in the 2015 Notice and the 2017 Notice were dismissed by the Board’s decision dated 15 March 2018 (the “2018 Decision”) relating to the BOR 2 Risk, BOR 3 Risk and Persecution Risk grounds. 

5.On 27 March 2018, the Applicant applied to the High Court under HCAL 499/2018 for leave to apply for judicial review of the 2018 Decision.  It was refused by Deputy High Court Judge Josiah Lam on 8 January 2019.  His appeal against that decision was dismissed by the Court of Appeal in CACV 12/2019 on 7 May 2019.  He exhausted all avenues of appeal on 30 July 2019 with the Court of Appeal refusing him leave to appeal to the Court of Final Appeal.  His non-refoulement claims relating the BOR 2 Risk, BOR 3 Risk and Persecution Risk grounds and the Torture Claim (collectively, the “previous claims”) have run their full course.  However, he still did not leave Hong Kong. Seven and half months later, he made a request by letter dated 16 March 2020 for making a subsequent claim (the “Request”).  

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 Bangladesh Nationalist Party (“BNP”) and the Awami League (“AL”) because he is a senior member of a rival political party, namely the Bangladesh Communist Party (“BCP”).  The BNP and the AL were powerful political parties in Bangladesh and ruled the country alternately.  The Applicant claimed he was targeted by the BNP when it won the election in 2001.  He was accused of using violence and causing disruption in the election.  He was arrested four times by the Bangladeshi police. He jumped bail and left Bangladesh to avoid his enemies.  In November 2001, he went to India and stayed there for a week before returning to Bangladesh.  On 29 August 2003, he came to Hong Kong and returned to Bangladesh on 15 September 2003.  He came to Hong Kong again and returned on 1 November 2004.  On 29 November 2004, he last departed Bangladesh.  He went in and out of Hong Kong several times and last entered Hong Kong on 25 March 2005.  He stayed in Hong Kong for five years before he surrendered to the police. 

8.In his 2015 Notice, the Director did not accept the Applicant faced any persecution risk or BOR 3 risk.  He considered reasonable state protection and internal relocation were available to the Applicant.  In his 2017 Notice, the Director refused his claim under the BOR 2 risk ground.

9.In its 2018 Decision, the Board found for various reasons that the Applicant was incredible and rejected his evidence. It found he had no intention to seek non-refoulement protection right from the start and rejected his claims under all three grounds.  The Board then went further and assessed his claims on the basis of the case as he asserted.  It found the Applicant had not been inflicted with ill-treatment to a minimum level of severity and he was not at risk under BOR 2 or BOR 3 risk grounds.  It found the dispute between the Applicant and the AL or the BNP were private disputes and the ill-treatment he suffered was not on account of any of the reasons protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the “Convention reasons”).  It was also satisfied that state protection is available and the Applicant could relocate to other areas in Bangladesh to avoid the risk of harm.

The intended subsequent claim

10.In the Request, the Applicant claimed he had made himself a furious enemy to the AL and suffered injuries caused by the AL and its supporters during the elections.  He said his life is in greater danger now than before as the AL is the current ruling party.  He learned from his brother that the AL lodged false cases against him.  He asked for extension of time to produce photographs of his damaged house caused by his enemies.

11.By a letter of 6 April 2020, an immigration officer requested the Applicant to provide further information and evidence in writing to support his Request within 14 days, ie on or before 20 April 2020.  The Applicant was also informed of his right to seek legal representation and the availability of the publicly-funded legal assistance. By his letter dated 17 April 2020, the Applicant replied that he was seeking further documents which might corroborate his Request.   The immigration officer gave him another 14 days until 12 June 2020 to produce the further information or evidence in writing.  On 9 June 2020, the Applicant approached the Immigration Department and requested an extension of time to submit documents due to the coronavirus lockdown in Bangladesh.  In all the correspondence to the Applicant, he had been informed of his right to seek legal representation and the availability of publicly-funded legal assistance.

12.The immigration officer took the occasion to interview the Applicant in the presence of a Bengali interpreter.  The Applicant was asked how did he know he was being falsely accused by the AL and that his enemies had filed false cases against him.  He said he learned from his brothers, his close associate, his friend’s enquiry with the police station, which confirmed that there were cases filed against him alleging that he was an underground gangster/terrorist belonging to the BCP.  On 15 June 2020, the officer gave him a written reminder to submit further information and evidence by 29 June 2020. 

13.The Applicant did not submit further information and evidence.  The immigration officer assessed his intended subsequent claim on the basis that the events he alleged are all true.  Even on that basis, the immigration officer came to the conclusion that there had been no significant change of circumstances since the Applicant’s previous claim was finally determined.  He also found that even if there had been such change, the change when taken together with the materials previously submitted in support of his previous claim would not give the subsequent claim a realistic prospect of success.  Hence, he issued the 2025 Notice on behalf of the Director to refuse the Applicant’s Request for making a subsequent claim.

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[4].

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)   he was not given the opportunity to be screened by the Director at an interview or to appeal to the Board;

(2)   he was not legally represented at these proceedings;

(3)   it was unfair for the Director to make a decision without having him screened;

(4)   he had no opportunity to lodge his appeal to the Board;

(5)   there are many more unacceptable and unexplainable grounds;

(6)   he suffered dangerous problems, harassment and torture in Pakistan;

(7)   the Director refused his claim without sending an immigration officer to his country to make proper inquiries;

(8)   if he did not flee Pakistan, he would have been killed; and

(9)   he should be granted leave to apply for judicial review.

Grounds (1) and (3) - no screening interview

16.There is no mandatory duty on the Director to carry out a screening interview nor is a claimant entitled to a screening interview as such.  The Director’s duty is to exercise his duty of joint endeavor to assist a claimant to establish his claim.  This duty is usually discharged by holding a screening interview to investigate the claimant’s claim.  On the fact, the Applicant attended an interview when he came to seek extension of time to file documents.   The immigration officer took the opportunity to conduct an interview with him.  He made inquiries with the Applicant.  As mentioned in paragraph 11, he helped by asking the Applicant questions as to how he came to know he was being falsely accused by the AL and the false cases made against him.  The officer gave him further extension of time to file documentary evidence.  When the Applicant failed to meet the time limit for producing documentary evidence, the officer assessed his claim on the basis that all the events he asserted were true.  There could be no valid complaint under this ground.

Ground (2) - lack of legal representation

17.The high standard of fairness requires that a claimant for non-refoulement protection must be provided with adequate legal assistance.  But that high standard does not require that he be provided with legal assistance throughout the entire non-refoulement procedures.  It was held by the Court of Appeal in Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[10] nor in the judgment of FB v. Director of Immigration[11] 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.  The extent of assistance depends on the individual circumstances, such as complexity of the case in terms of fact or the law; and whether minor claimants are involved.  Usually, the high standard is attained if the claimant is provided with legal assistance at the initial stage of the non-refoulement process which is the most important stage of the non-refoulement process.  It includes an initial consultation in which the law relating to non-refoulement protection is explained to the claimant and instructions are taken from him as to the facts of his case, assistance in the completion of the non-refouleement claim form and legal representation at the screening interview. 

18.The Applicant had the benefit of legal representation at the screening interview in his previous claim.  He had gone through the appellate proceedings to the Court of Final Appeal without legal assistance.  Having had the experience obtained in the previous claim, he ought to be familiar with the proceedings.  He had been advised by the immigration officer by his letter dated 6 April 2020 about the law applicable to making a subsequent claim.  He had been repeatedly advised of his right to legal representation and of the availability of publicly-funded legal assistance.  It is not clear if he had applied for legal assistance.  If he had not, he only had himself to blame.  If he had applied and was refused assistance, regrettably that was the limit of what Hong Kong could provide.  For reasons as explained above, as he had been provided with legal representation in his previous claim, it could not be said that the authorities had failed to attain the high standard of fairness in the circumstances.

Grounds (1) and (4) – No right to appeal to the Board

19.Under the USM, the two tier decision making process is available only to the first claim, ie the previous claim.  Under section 37ZR of the Immigration Ordinance, the Board has no jurisdiction to hear appeals from an immigration officer’s decision in a subsequent claim.  However, a claimant aggrieved by the immigration officer’s decision may seek leave to apply for judicial review of his decision in just the same way as if it were the decision of the Board.  There was no procedural unfairness.

Ground (5) – More unacceptable and unexplainable grounds

20.This ground is wholly lacking in particulars. The Applicant did not attend the hearing and forewent the opportunity to perfect this ground of claim.  In the absence of particulars, this Court is unable to process this ground.  However, the Court will bear this complaint in mind in its overall scrutiny of the Board’s Decision.

Ground (6) – his life will be in danger and he will be killed if returned to in Pakistan

21.The Applicant is a Bangladeshi.  His claim is based on risks in Bangladesh and not Pakistan.  His grounds are obviously a direct copy from a Pakistani applicant’s case which has no bearing to his claim at all.  Assuming it is a typographical error and that the Applicant was referring to dangers in Bangladesh, this complaint is in substance a challenge against the finding of fact of the immigration officer that there has been no significant change of circumstances in Bangladesh which would give the subsequent claim a realistic prospect of success, ie that he would not be at risk of any of the proscribed harm.  For reasons as explained in paragraph 13, this is impermissible in an application for judicial review, save for errors of law, procedural unfairness or irrationality in the Decision.  The Court will re-visit these issues in its overall scrutiny of the Board’s Decision.

Ground (8) – he will be killed if returned to Bangladesh

22.For the same reason as mentioned in the preceding paragraph, this ground is in substance a direct challenge against the finding of fact of the immigration officer which is not permissible.

Ground (7) – Director’s failure to make proper inquiries

23.The burden of proving his claim to non-refoulement protection is on the claimant, not on the Director.  The claimant has to prove he is personally at risk of any of the proscribed harm. The Director’s duty is to assist him to establish his claim to the low standard of proof required.  He has no duty to send his immigration officers to the risk state to look for the claimant’s persecutors to verify the claimant’s claim.  The immigration officer may research into country of origin information to look for support for the claimant.  That was what the officer did.  He researched into authoritative and credible COI.  On the fact, the immigration officer found in the previous claim on the basis of the COI and the evidence that state protection is available.  There is no evidence that the immigration officer in processing his Request had failed to consider contrary COI supportive of the Applicant’s claims. 

Ground (9) – The Applicant should be granted leave to apply

24.That is the relief sought, which depends on whether the Applicant has established if any of his grounds are arguable with prospect of success.

Overall scrutiny

25.Having considered the Request, the Director’s 2015 and 2017 Notices and the Board’s 2018 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 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 Court could not detect any error of law in the 2025 Notice.

26.The immigration officer observed a very high standard of fairness.  He advised the Applicant on the law and procedure in prosecuting his Request and advised him of his right to legal representation and the availability of publicly funded legal assistance.  It is not clear if the Applicant had taken on the advice and sought legal representation.  The immigration officer acted fairly and granted him two extensions of time to file documentary evidence.  When the Applicant failed to meet the deadline, the officer assessed his claim on the basis that all the events he alleged were true.  The Applicant could have no valid complaint about the immigration officer’s approach and his acceptance of his factual case.

27.In his previous claim, the Applicant said he had been subject to harm and risk of harm from the AL and BNP.  He said in 2014, he was targeted by the BNP when BNP was in power.  Now, with the AL coming into power, he said he was told by his brother and friend that he was being targeted by the AL and his house was damaged.  As mentioned above, the immigration officer assessed his claim on the basis that what he alleged are all true.  The harm and risk of harm are of the same nature, the persecutors are the same, though the AL are more active than the BNP now.  The harm and risk of harm from the AL had been considered in the previous claim.  In the previous claim, the immigration officer found the Applicant was granted bail and was free to leave and re-enter Bangladesh trouble-free on numerous occasions suggesting that justice was manifestly done on him.  In other words, justice is accessible in Bangladesh.  The Board found the facts of the previous claim did not give rise to any claim to protection under BOR 2, BOR 3 and Persecution Risks.  Both the immigration officer and the Board found that state protection and internal relocation are viable options to mitigate or 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 provided 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

28.For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2025 Notice of Decision 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