H K KOHINOOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2509/2020

[2026] HKCFI 3348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2509 OF 2020

____________

____________

______________

D E C I S I O N

______________

Introduction

1.  This is the Applicants’ application by summons filed on 14 April 2026 for extension of time to appeal the order of this Court dated 15 January 2026 (the “Order”) refusing him 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 file a subsequent claim.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  The Applicant is two months and fifteen days out of time.  In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.  If the delay is not substantial, it would be readily condoned if there is some credible explanation and an arguable ground of appeal.  If the first three factors are resolved against granting leave, there is no need to consider prejudice to the respondent.

Explanation for the delay

3.  The delay of more than two and half months in an appeal period of 14 days is substantial.  The Applicant’s explanation for the delay as stated in his supporting affirmation is that he has never received the Order.  He said he was only informed on 13 April 2026 by his duty lawyer representing him in a charge of overstaying in Hong Kong that his leave application had been refused by the High Court.  This is just a bare assertion unsupported by any credible evidence of that fact and the surrounding circumstances.  The Court noted that the Applicant did not attend the hearing of his leave application.  If he has not received the Order, the most likely cause is that he has not updated his address with the court.  To assist him to make a proper application for extension of time, the Applicant was given directions by letter on 17 April 2026 to file a statement within fourteen days of the directions: (1) stating all his correspondence addresses since 29 December 2020 when he filed his leave application; (2) the date of change of address thereafter, exhibiting supporting documentary evidence; (3) the date of reporting the change to the Immigration Department; and (4) the date of informing the High Court of the change.  

4.  As at the date of this decision, about six weeks have lapsed.  The Applicant has not responded.  The directions letter has not been returned through the course of mail.  The inference to be drawn from his failure to respond is that from the directions he realized he has no reasonable explanation for the delay.  The Applicant’s address as stated in his summons is at Kilung Street.  According to the Court’s record, the address to which the Order was sent is at Lai Chi Kok Road and at Fuk Wah Street.  If the Applicant is currently residing at Kilung Street, he could not have received the Order.  Whose fault was it?

5.  As may be gleamed from paragraph 2 of the Form CALL-1 attached to the Order sent to the Applicant, the Notice of Hearing of the leave application had been sent to him at his address at Fuk Wah Street as stated in his Form 86 and at his updated address at Lai Chi Kok Road discovered from the Immigration Department on 16 October 2025.  He had never informed the Court of his change of address since filing his Form 86.  This is what led to his failure in receiving the Order and Form CALL-1.  Furthermore, on the afternoon of 12 December 2025 (one working day before the hearing), an attempt was made by a court staff to contact him on the telephone number he provided when filing his Form 86, but the call was not answered.

6.  In Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

It is the Applicant’s duty to update the Court with his change of address.  Ifhe did not, he has to bear the consequence of his neglect.  His explanation, though true, is not a reasonable explanation for the delay.

Prospect of the intended appeal – grounds of appeal

7.  By way of background, the Applicant last arrived in Hong Kong on 25 March 2005 and overstayed since 9 April 2005.  He made a torture claim on 22 November 2009 and later a non-refoulement claim on 27 June 2013 (collectively, the “previous claims”). Those claims had been refused and had run their full course to the Court of Final Appeal on 30 July 2019.  On 16 March 2020, he made a request to the Director for making a subsequent claim.  The request was refused by the Director’s 2020 Notice and he sought leave to apply for judicial review of the Director’s decision.  His leave application was refused by the Order of this Court.  He now seeks extension of time to appeal that Order.  His ground of appeal is that “[his] problem is still exist in [his] home country and [he] want to appeal”. 

8.  The essence of his previous claims is that he will, if refouled, be harmed or killed by members or people of the Bangladesh Nationalist Party and the Awami League (the “AL”) because he is a senior member of a rival political party, namely the Bangladesh Communist Party.  By its 2018 Decision, the Board found the Applicant incredible and rejected his evidence.  It also found the Applicant could mitigate or avoid the risk of harm, if any, by seeking state protection and internal relocation which are available and feasible.  Those findings are now final.

9.  The essence of the Applicant’s intended subsequent claim is that he had made himself a furious enemy to the AL and he learned from his brother that the AL had lodged false cases against him.  It should be noted that his allegation that he had made himself a furious enemy to the AL is an assertion which had been rejected by the Board’s 2018 Decision and the Director’s Notice of Decision dated 29 May 2015 (the “2015 Notice”).  It was the building block of the centrepiece of his previous claims. That was rejected by the Board and the Board’s 2018 Decision is now final.  His previous claims were built on a fiction.  His intended present claim based on the AL lodging false cases against him is also premised on that fiction. 

10.  Section 37ZO(3) of theImmigration Ordinanceempowers the immigration officer to 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 in deciding whether the Applicant may make a subsequent claim.  The immigration officer noted the Board’s finding in its 2018 Decision that the Applicant’s previous claims are incredible and that state protection and internal relocation are feasible options to mitigate or avoid the risk of harm.  He also noted, in particular, that there is nothing to suggest that the Bangladeshi police would not act impartially towards him as evidenced by his four arrests and subsequent releases without problem between 1985 and 2001. 

11.  The Applicant did not submit further supporting information and evidence to support his intended subsequent claim as requested by the immigration officer.  Nevertheless, the officer assessed his intended subsequent claim on the basis that the events he asserted are all true.  He found there has been no significant change of circumstances since his previous claim was finally determined.  He further found, even if there were, 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. 

12.  Viewed in the light of the above factual background, the Applicant’s ground of intended appeal is a direct challenge of the immigration officer’s finding of fact, which the Court may not intervene save for errors of law, procedural unfairness and irrationality in the decision.  On the evidence available, it was open to the immigration officer to make the finding as he did.  The Applicant’s intended subsequent claim is founded on a fiction that he had made himself a furious enemy of the AL.  Without that fact, the risk of serious harm likely to be caused by the AL making false cases against him would be very much reduced.  The immigration officer has also found on the basis of the Applicant’s own evidence that there is nothing to suggest that the Bangladeshi police would not act impartially towards him.  In any event, as has been conclusively found by the Board any risks of harm could be mitigated or avoided by seeking state protection which is available and resorting to internal relocation which is feasible.  The Applicant has not advanced any argument that this Court had erred in not finding any of those vitiating elements in the Director’s Notice. The intended appeal stands no prospect of success.

Conclusion

13.  In view of the finding above, there is no need to consider the question of prejudice to the respondent if extension of time is granted.  As the Applicant has no reasonable explanation for the substantial delay and his only ground of appeal has no prospect of success, his application for extension of time to appeal is refused.