MAHMOOD, FAISAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1161/2021

[2026] HKCFI 2765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1161 of 2021

Application for Leave to Apply for Judicial Review

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

Following;

The application for leave to apply for judicial review be dismissed. 

Observations for the Applicant:

1.  By a Form 86 filed on 17 August 2021, the Applicant sought leave for judicial review of a decision of the Director of Immigration (“DI”) dated 19 July 2021 (“DI’s Decision”). A copy of the DI’s Decision was exhibited to the supporting affirmation.  It was clearly a decision made in relation to the Applicant’s request to make a “subsequent claim” under, amongst other applicable legal bases, section 37ZO of the Immigration Ordinance (Cap. 115) (“IO”). 

2.  According to the DI’s Decision and other relevant documents supplied by the Secretariat of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”), the Applicant’s original non-refoulement claim, lodged in 2012, was rejected by DI on 5 October 2015.  DI made a further decision specifically on the Applicant’s right under Article 2 of the Hong Kong Bill of Rights on 3 November 2016.  DI rejected the non-refoulement claim on all applicable grounds.  

3.  On 17 January 2017, the Board heard an appeal/petition from DI’s earlier decisions; it later decided on 31 August 2017 to dismiss the appeal/petition and uphold DI’s earlier decisions.  The Applicant applied for leave to commence judicial review against the Board’s decision but was refused in 2018.  He further appealed to the Court of Appeal but the appeal was likewise dismissed. 

4.  In other words, before the DI’s Decision (the subject of the present application) was made in July 2021, the Applicant had already had his claim processed by 4 levels of administrative decision-makers and courts.  

5.  The Applicant was removed back to Pakistan on 25 October 2018.  On 17 November 2020, he was arrested by Hong Kong Police for being an illegal immigrant, i.e., he had physically returned to Hong Kong after the aforesaid removal.  After the arrest, the Applicant submitted a written signification and a letter to DI to initiate a “subsequent claim” procedure.  Supporting documents were provided.  DI also conducted an interview for the Applicant on 18 May 2021.  

6.  In the DI’s Decision, DI’s handling officer first set out the principle regarding when a “subsequent claim” could be made (the one under IO s.37ZO).  Factual findings made by DI and the Board from 2015 to 2017 in the previous process were summarized, and the gist of the Applicant’s grounds in the documents submitted in 2020 and during the interview were also recorded. 

7.  DI’s officer then stated that the new information from the Applicant were not raised in the previous claim and the relevant events occurred after he was returned to Pakistan in 2018.  However, the new information was not accepted to be credible – several unreasonable features of the Applicant’s assertions were stated.  Moreover, a person called Sheikh Amin was said to have beaten up the Applicant on 25 September 2019. This particular person was the person the Applicant claimed to be fear of in the previous process. 

8.  DI’s officer then said the DI and the Board both found availability of State protection in the previous process; there was no indication in 2020 or 2021 of any significant change of country of origin conditions. 

9.  Overall speaking, DI found that there was no change of circumstances, after the previous claim was finally determined, rendering a “subsequent claim” of the Applicant enjoying any realistic prospect of success.  The request to make a “subsequent claim” was thus refused. 

10.  In the supporting affirmation for the present application, the Applicant set out a number of grounds against the DI’s Decision: (1) the finding that there was no realistic prospect of success was erroneous; (2) an unnecessarily high threshold had been applied in determining prospect; (3) DI merely repeated what was previously decided by the Board; (4) the Duty Lawyer Service (“DLS”)’s refusal to represent the Applicant in the “subsequent claim” process (including the interview on 18 May 2021); (5) the Applicant was not given a chance to appeal to the Board against the DI’s Decision first, which was procedurally unfair. 

11.  In my judgment, the DI had applied the correct principle under IO s.37ZO, which applies to torture risk and administratively should also apply to other applicable grounds under the Hong Kong Bill of Rights etc.  DI did not adopt a higher burden.  Given the same underlying reason had already gone through a due process in the past, the burden for the Applicant to get across for a new procedure to kick start must be higher than the burden to initiate a completely new non-refoulement claim.  This is plainly the legislative intent of IO s.37ZO and also necessary in the scheme of things.  Moreover, in this process DI is duty bound to compare the Board’s reasoning in the previous process.  There was nothing wrong for the DI to compare, and he had in fact found certain assertions from the Applicant to be new and had assessed hem. DLS’s legal representation for the Applicant in the “subsequent claim” procedure is not a requirement under common law principle of natural justice. There are abundant authorities saying that, even for a fresh claim, legal representation at the tier-2 process before the Board does not mandate the provision of publicly-funded legal representation to an appellant/petitioner. Finally, the fact that the Legislature has decided not to provide for an appeal from DI’s s.37ZO decision to the Board (see s.37ZQ on the Board’s jurisdiction) is not a matter this Court can interfere with.  Administratively, the papers of this case do not show whether the Applicant had attempted to file a petition with the Board (its Petition Office part).  For the same reason, it is actually quite unnecessary for the Applicant to name the Board as a putative party to this court application. 

12.  During the oral hearing of the present application, the Applicant added that DI had failed to consider a judgment given by a Islamabad judge he had submitted to the DI.  A copy of that judgment can be found in his supporting affirmation.  However, paragraph 13 of the DI’s Decision specifically referred to an Islamabad judgment, which appeared to me to the same one exhibited to affirmation.  When this Court pointed out to the Applicant during the oral hearing that the Islamabad judgment had been apparently considered by the DI, the Applicant made no further submission on this and shifted to the concern that his enemy in Pakistan was influential.  In fact, during the hearing, he mentioned at least twice the reason causing him not wanting to return to Pakistan has been “the same” – just the action taken against him had been repeated. 

13.  The Applicant also vaguely argued that DI did not take into account the Applicant’s unique situation fairly or carefully and he was biased.  There is no substance in such vague assertions. 

14.  I have considered the DI’s Decision vigorously, but am unable to detect any reasonable argument that it should be quashed.  This application for leave to apply for leave is therefore dismissed. 

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