PRAMANIK BILLAL v. DIRECTOR OF IMMIGRATION

HCAL 2377/2020

[2026] HKCFI 4279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2377 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 3 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 27 October 2020 (the “2020 Notice”) refusing his request to make a subsequent claim (the “Request”).  

2.  When his leave application came to be processed in October 2025, the Court was informed by the Director that the Applicant had died on 29 April 2025. The issue of his non-refoulement has become academic. Nevertheless, the leave application has to come to a conclusion. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court is satisfied that the leave application may be justly determined on paper.

Background

3.  The Applicant was arrested by the police on 19 August 2013. He claimed to have sneaked into Hong Kong from Mainland China. He made a claim for non-refoulement protection on all applicable grounds (the “previous claim”). His previous claim was rejected by the Director’s Notice of Decision dated 10 September 2015 (the “2015 Notice”) and Notice of Decision dated 31 March 2017 (the “2017 Notice”). His appeal against the 2015 Notice and 2017 Notice was dismissed by the Board decision dated 28 June 2017 (the “Board’s Decision”).

4.  On 4 July 2017, he applied to the Court of First Instance for leave to apply judicial review of the Board’s Decision. Deputy High Court Judge Woodcock, as she then was, took the view that his leave application was filed out of time as it was filed 14 days after the Board’s Decision. She nevertheless scrutinised the Board’s Decision. She found no errors of law, procedural unfairness or irrationality in the Board’s Decision and came to the conclusion that his application for judicial review had no prospect of success and refused his application. On appeal, the Court of Appeal found the deputy judge erred in finding that the leave application was filed out of time, but upheld the decision on the ground that the intended judicial review has no prospect of success and dismissed his appeal. Thus, his previous claim had run its full course. The finding in the Board’s Decision is final. However, about nine months later, the Applicant made the Request to the Director to file a subsequent claim. His Request was refused by the Director’s 2020 Notice.

5.  Under the Unified Screening Mechanism, 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

6.  In his previous claim, the Applicant claimed that if returned to Bangladesh, he would be harmed or killed by members or supporters of the Awami League Party (the “AL”) because he is a member of the student wing (“Chatra Dal”) of the Bangladesh Nationalist Party (the “BNP”) and refused to join the AL. The immigration officer in the previous claim found on the basis of his evidence that he had never been inflicted with any physical harm by the people from the AL or that the harm inflicted upon him attained a minimum level of severity; that his perceived risk of harm is based on hearsay evidence; that he had never met his enemies after he had relocated to Dhaka; that there was no evidence that his feared ill-treatment was real or foreseeable; and that in any event, it would not be unreasonable for him to relocate to other areas in his home country to negate his perceived risk of harm. On the other hand, the Board found numerous discrepancies and inconsistencies in his evidence and was not satisfied that the Applicant had given a truthful or reliable account of events which he claimed had occurred in Bangladesh. It found he was not a witness of truth and rejected his evidence.

7.  In his intended subsequent claim, the Applicant claimed that he is a member of the BNP; the BNP lost in the recent elections and the people from the AL started attacking all BNP members; the windows and doors of his house were broken and his father was severely injured. He claimed he was targeted by the AL people because they thought he had helped promoting the BNP from Hong Kong with online campaign. Except for his claimed membership in the BNP, the immigration officer accepted that his intended claim has not been raised in his previous claim. However, he considered that the Applicant’s fear of the AL originates from his conflicts with the people from the AL for refusing to join the AL which had been considered in his previous claim. As for the AL’s winning in the recent elections, the immigration officer found, on the basis of authoritative and credible country of origin information, that had not caused significant changes in the country condition in Bangladesh. As for the claimed damage to his house and injuries to his father, the immigration officer found no cogent evidence that the conflicts between the Applicant and/or his family and the people from the AL had intensified. Hence, he does not accept the information submitted by the Applicant constitutes a significant change of circumstance which when taken together with the material previously submitted in support of his previous claim, would give the subsequent claim a realistic prospect of success.

Grounds of application

8.  The Applicant’s grounds of application as advanced in his Form 86 is that the Director’s decision is unreasonable and not carefully made. In the absence of any particularized grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in its overall scrutiny of the 2020 Notice.

Overall scrutiny

9.  Having considered the Request, the Director’s 2017 Notice and the Board’s Decision, and having rigorously examined the 2020 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.

10.  The Court is satisfied that the immigration officer observed a very high standard of fairness. He properly advised the Applicant of the requirements in making a subsequent claim and the availability of publicly-funded legal assistance. Apparently, the Applicant did not seek the assistance suggested. Neither did he provide further information and evidence as required by the immigration officer. The Applicant could have no valid complaint about procedural unfairness in the processing of his Request.

11.  In essence, the immigration officer found there was no significant change in circumstances since the previous claim was finally determined. This is essentially a mixed finding of fact and of the law. Insofar as it is finding of law, this Court could detect no error of law in the 2020 Notice. Insofar as it is a finding of fact, it is solely a matter for the immigration officer which the Court in a judicial review may not interfere, save for errors of law, procedural unfairness and irrationality in the decision in the 2020 Notice. On the intended subsequent claim and evidence as presented by the Applicant, it was open to the immigration officer to come to the above conclusion. The Court could detect no error of law or procedural unfairness in the 2020 Notice. The decision in the 2020 Notice does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospect of success. Accordingly, his leave application is refused.

12.  The Applicant has deceased. The Court does not have the contact address of the Applicant’s family members in Bangladesh. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forwarded them to the Applicant’s known next of kin.

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