MD PANCHU v. DIRECTOR OF IMMIGRATION

HCAL 1277/2021

[2026] HKCFI 2766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1277 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 10 September 2021, the Applicant sought leave for judicial review of a decision of the Director of Immigration (“DI”) dated 2 September 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 2014, was rejected by DI on 20 August 2014.  DI made a further decision specifically on the Applicant’s right under Article 2 of the Hong Kong Bill of Rights on 9 May 2017.  DI rejected the non-refoulement claim on all applicable grounds. 

3.  On 13 October 2017, the Board decided an appeal/petition from DI’s earlier decisions without a hearing and uphold DI’s earlier decisions.  The Applicant was repatriated to India on 15 November 2017.  On 8 February 2021, he was arrested by Hong Kong Police for illegally remaining in Hong Kong, i.e., he had physically returned to Hong Kong after the aforesaid repatriation.  After the arrest, the Applicant submitted a written representation to initiate a “subsequent claim” procedure.  Supporting documents were provided.

4.  In the DI’s Decision, DI’s handling officer first set out the principle regarding when a “subsequent claim” could be made (resembling the one under IO s.37ZO).  Factual findings made by DI and the Board from 2014 to 2017 in the previous process were summarized, and the gist of the Applicant’s grounds in the documents submitted in 2021 was also recorded. 

5.  After examining the facts, the DI noted that the Applicant’s fear of risk of violence or being killed by an individual called Sunny and his people from a political party called TMC had been duly considered in the previous process.  DI also noted that the Applicant’s inaction to raise claim until his arrest, after his return to Hong Kong, caused a credibility concern over his present claim.  The supporting documents supplied were also analyzed. It was not accepted that any suggested change of circumstances, when taken together with the material previously submitted in support of the Applicant’s previous claim, would give any “subsequent claim” of his a realistic prospect of success. 

6.  The Applicant has not set out any public law ground in his Form 86 or supporting affirmation against the DI’s Decision.  He merely repeated he did not want to go back to his country because his life was still in danger. During the oral hearing of the present application, the Applicant added nothing and apparently did not even understand what he was seeking to challenge is a “subsequent claim” decision.  He voluntarily said his problem was still about the same individual called Sunny and the TMC Party. 

7.  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