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HCAL 1226/2021
[2026] HKCFI 2464
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1226 OF 2021
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BETWEEN
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Khan Sanjeev |
Applicant |
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and |
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Director of Immigration |
Putative |
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Respondent |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Director of Immigration”.
2. Leave granted to the applicant to apply for judicial review in respect of the decision of the Director of Immigration dated 31 May 2021.
3. The applicant is directed to issue an originating summons for the intended judicial review on or before 13 May 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 31 August 2021, 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 31 May 2021 (“the Director’s 2021 Decision”), which refused the applicant’s request for making a subsequent claim for non-refoulement protection (“the Request”). The Request was made by way of the Interview Report (Grounds for non-removal) dated 21 January 2021.
2. In the Director’s 2021 Decision, the Director decided that the applicant’s claimed threat in the Request did not constitute a significant change of circumstances which would give the intended subsequent claim a realistic prospect of success.
Amendment
3. In Form 86, the applicant named Immigration Department as the putative respondent when the Director should be so named.
4. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Director of Immigration”.
Procedural history of the applicant’s previous non-refoulement claim
5. The applicant is a male Indian who was refused permission to land in Hong Kong on 25 October 2013. With the assistance of his legal representative, the applicant submitted a written representation seeking for non-refoulement protection on the same day.
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 Unified Screening Mechanism (“the USM”) on 29 December 2015 (“the Director’s 2015 Decision”).
7. The applicant filed an appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s 2015 Decision on 12 January 2016. On 7 October 2016, the Board dismissed the applicant’s appeal/petition following the applicant’s intention to withdraw the appeal/petition as contained in his written submission dated 6 October 2016.
8. The applicant was removed back to India on 2 November 2016.
The applicant’s subsequent claim
9. By the Interview Report (Grounds for non-removal) dated 21 January 2021, the applicant made the Request and claimed for non-refoulement protection because he could not go back to India as his life was in danger due to political issue.
10. By way of two letters dated 28 January 2021 and 11 February 2021 respectively, the Director requested the applicant to provide further information and evidence in writing in support of the Request. However, the Director did not receive any further evidence or information/documents from the applicant after the deadlines for such submission had lapsed.
11. After consideration of the applicant’s previous non-refoulement claim, the Request and the available information, the Director refused the Request by way of the Director’s 2021 Decision.
The applicant’s case
12. In his first claim for non-refoulement protection, the applicant claimed that if refouled to India, he would be harmed or killed by the people from the Bharatiya Janata Party (“BJP”), as he, being a supporter of the Indian National Congress, refused to join BJP.
13. In the Request, the applicant’s claimed threat was also from the people of BJP due to political divergence, which had been duly considered in his previous claim.
Oral hearing
14. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 16 April 2026.
15. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
16. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
17. 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).
18. In his Form 86, the applicant alleged that the Director’s 2021 Decision was substantially unfair, he was preparing the Leave Application without legal representation and he reserved the right to amend the grounds.
19. Likewise, in his supporting affirmation dated 31 August 2021, the applicant alleged that the Director’s 2021 Decision was not made correctly and he would submit additional grounds to support his claim.
20. Since the applicant was absent at the oral hearing before this court, he did not provide any particulars of the said grounds, apply to amend the said grounds or submit any further grounds.
Discussion
21. First of all, the Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
22. Thus, the applicant’s general allegations that the Director’s 2021 Decision was substantially unfairand incorrectly made cannot help the applicant at all.
23. As to the applicant’s allegation that there was a lack of legal assistance when he prepared the Leave Application, this court notes that the applicant had his own legal representative when he first lodged his non-refoulement claim in 2013, and a lawyer from the Duty Lawyer Service assisted the applicant in the first tier of the screening process in his previous non-refoulement claim.
24. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Thus, there is no substance in this allegation.
25. Nothing, therefore, in the applicant’s Form 86 or his affirmation constitutes a valid ground for challenging the Board’s Decision.
26. 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.”
27. The Director found that the basis of the subsequent claim was the same as that of the applicant’s previous claim, and considered that the applicant had failed to satisfy an immigration officer that there had been any significant change of circumstances or those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.
28. However, this court notes that the applicant’s risk from the people of BJP had never been assessed on the ground of BOR 2 Risk[4]. In the applicant’s previous claim, his risk from the people of BJP was only assessed on the grounds of Torture Risk, BOR 3 Risk and Persecution Risk under the USM. Hence, it is arguable whether the applicant’s subsequent claim had already been fully considered in his previous claim.
29. It was well-established in Ubamaka[5]that absolute and non-derogable rights under the Hong Kong Bill of Rights (“the HKBOR”) should not be violated in the consideration of non-refoulement claims, and BOR 2[6] is an absolute and non-derogable right under the HKBOR. The Director has since Ubamaka enhanced the USM to include BOR 2 Risk as an applicable ground under the USM.
30. Thus, in failing to consider the applicant’s BOR 2 Risk, the Director might have committed an error of law or involved in procedural unfairness in dealing with the applicant’s Request, especially when the applicant claimed that his life was in danger due to political issue.
31. Having rigorously examined the Director’s 2021 Decision and the evidence with anxious scrutiny, this court is satisfied that there could be an error of law in respect of the assessment of the applicant’s Request and/or procedural unfairness to the applicant in the Director’s 2021 Decision.
32. In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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.
33. As it is this court’s view that there could be an error of law and/or procedural unfairness in the Director’s 2021 Decision, the intended judicial review is reasonably arguable. Leave should therefore be granted to the applicant to apply for the intended judicial review.
Conclusion
34. For reasons aforesaid, leave is granted to the applicant to apply for judicial review in respect of the Director’s 2021 Decision.
35. The applicant is directed to issue an originating summons for the intended judicial review on or before 13 May 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.
Dated the 29th day of April 2026
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( Gladys LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 29/04/2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 29/04/2026
Director of Immigration
Putative respondent’s ref. no.:
ImmD RA 7/37/C (Formerly RBCZ 712/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.
[4] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] Ubamaka Edward Wilson v. Secretary for Security and Another (21/12/2012, FACV15/2011) (2012) 15 HKCFAR 743.
[6] Right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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