FAYAZ MUHAMMAD v. DIRECTOR OF IMMIGRATION

HCAL 1253/2025

[2025] HKCFI 6209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1253 of 2025

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only;          or
	consideration of documents and submission of the Applicant in open court;

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 2 June 2025 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 23 May 2025 (the “2025 Notice”), refusing his request for making a subsequent claim (the “Request”).

2.  The Applicant is a Pakistani national.  He left Pakistan on 6 July 2013 for Mainland China and from there he sneaked into Hong Kong.  He surrendered to the Immigration Department on 10 December 2013 and lodged a non-refoulement claim on 28 February 2014 (the “previous claim”).  His claim was assessed under the Torture Risk ground, BOR 3 Risk ground and Persecution Risk ground then available under the Unified Screening Mechanism (“USM”).  It was refused by the Director’s decision in his Notice of Decision dated 27 November 2015 (the “2015 Notice”).  His appeal against the 2015 Notice was dismissed by the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 8 November 2016 (the “2016 Decision”). 

3.  On 6 February 2017, the Director on his own initiative invited the Applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds, including BOR 2 Risk ground.  The Applicant did not submitted any relevant material or facts.  Then, by a Notice of Further Decision dated 27 February 2017 (the “2017 Notice”), the Director refused his claim under BOR 2 Risk ground.  His appeal against the 2017 Notice was dismissed by the decision of the Board dated 5 October 2018 (the “2018 Decision”).  On 10 October 2018, the Applicant applied to the Court of First Instance for leave to apply for judicial review of the Board’s 2018 Decision under HCAL 2194/2018.  His leave application was refused by Deputy High Court Judge Bruno Chan on 2 September 2021.  His appeal against that decision was dismissed by the Court of Appeal on 13 December 2022.  He did not pursue further appeal.  The Board’s 2018 Decision became final.

4.  In the meantime, on 24 May 2017, about three months after the issue of the Director’s 2017 Notice refusing his claim under BOR 2 Risk ground, the Applicant applied to the Court of First Instance under HCAL 231/2017 for leave to apply for judicial review of the Board’s 2016 Decision in respect of his claim under the three other grounds.  His leave application was made out of time and refused by Madam Justice Au-Yeung on 2 September 2021.  On 2 September 2024, he exhausted all avenues of appeal against that decision with the Court of Final Appeal’s refusal of his application for leave to appeal.  Thus, the Board’s 2016 Decision also became final.  The Applicant’s previous claim was finally determined on all four applicable grounds under the USM.

5.  The Applicant did not leave Hong Kong.  Within ten days of the Court of Final Appeal’s decision, he made a Request by letter dated 12 September 2024 (“Letter I”) to file a subsequent claim.  The immigration officer referred his case to the Duty Lawyer Service (“DLS”) for them to consider whether to provide publicly-funded legal assistance to the Applicant. However, the DLS declined to represent him.  By a letter dated 28 October 2024, the immigration officer informed the Applicant of the decision of the DLS, suggested him to seek private legal representation and requested him to provide further evidence in support of his Request on or before 11 November 2024.  The immigration officer also advised him that if no evidence/supporting documents were readily available, he may apply for extension of time to comply that otherwise his Request would be assessed based on all information then available.  On 30 October 2024, the Applicant submitted a statement in support of his Request (the “Statement”) and applied for extension of time.  He submitted a letter dated 24 April 2025 (“Letter II”) with his medical appointment documents.  He attended the interview before the immigration officer on 7 May 2025 and furnished further supporting evidence. 

The law

6.  Section 37ZO of the Immigration Ordinance provides that a person who has previously made a non-refoulement claim must not subsequently make another non‑refoulement claim, unless he/she can provide sufficient evidence in writing to satisfy an immigration officer that there has been (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) the change, when taken together with the materials previous submitted in support of the previous claim, would give the subsequent claim a  realistic prospect of success.  In deciding whether or not a person may make a subsequent claim, 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 that person.

The previous claim

7.  The Applicant’s personal background, the factual background leading to his previous claim, the basis of his previous claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In essence, he claims he is a member of the Pakistan Muslim League (Nawaz) political party (“PMLN”) and Pakistan Sunni Tehreek religious group (“PST”).  He was a Senior Vice President of the PMLN Youth Wing in 1998.  He said he could not exercise his religious or political freedoms in Pakistan.  He claims he is afraid that he would be harmed or even killed, if returned to Pakistan, by the Muttahida Qaumi Movement (“MQM”) and supporters of rival political parties.

8.  The Board found he had never been personally subjected to any physical or mental torture in Pakistan and that the violence he spoke of was not coming from the government or non-government officials, but from various violent political/religious factions like MQM, criminals and terrorists such as the Taliban.  He was not a high profile or important member of the PMLN, PST or the state government and was not widely known as a PMLN or PST member anywhere in Pakistan.  It did not accept his case that the MQM were out to kill him personally anywhere in the world. According to the Applicant, the Taliban did not know him personally and were not out deliberately to attack him or his family.  It rejected the Applicant’s claim that it was very dangerous to attend PST meetings and he had done so for over six years before he left Pakistan.  The Board accepted that reasonable state protection and relocation alternative would be available to the Applicant on his return to Pakistan.

The Request and the present claim

9.  In Letter I, the Applicant claims, inter alia, that he could not go back to Pakistan because his life would be in danger there, his enemies are powerful and are seriously looking for him.  In his statement, he said that Pakistan is in a critical situation and its government policy is not good.  He said he need medical treatment in Hong Kong.  He made a general assertion that he is entitled to protection under the Hong Kong Bill of Rights Ordinance and requested a duty lawyer.

10.  In his further evidence, he said he had joined the Tehreek-e-Labbaik Pakistan (“TLP”) which had become the most popular party in Pakistan.  Because of that it attracted oppression from other political parties, such as the Pakistan Peoples Party (“PPP”), Pakkistan Tehreek-e-Insaf (“PTI”) and PMLN.  He said 64 TLP workers have been martyred. He repeated his need for medical treatment in Hong Kong.

11.  In Letter II, he submitted some documents showing his medical appointments and said he is suffering “breadth [sic] disease” and had pain all over his body and walking difficulties.

12.  At the interview, the Applicant elaborated on his past participation in the TLP and said that he and other Pakistani are in the course of forming an association in Hong Kong to be affiliated to the TLP.  He also elaborated on his medical condition.

The immigration officer’s decision

13.  The immigration officer found the Applicant’s present claim is premised on his past involvement/profile in the PST.  He modified his previous claim by saying that he followed other PST members to join the TLP.  The immigration officer doubted his motive in joining TLP which would expose him to further risk of harm.  He found the Applicant’s evidence in relation to his present claim inconsistent, implausible and damaged his credibility.  He claimed to have joined the TLP in Hong Kong in 2017 through social media by filling in an application form.  The form was submitted and dated 19 October 2024, which coincidentally was a month after he filed his Request for making a subsequent claim.  The Applicant’s explanation is that he had been working for TLP since 2017 without filing the membership form and he only filed the form for the purpose of this Request.  The immigration officer did not accept he joined the TLP in 2017 and considered his delay in applying for membership undermined the credence of his claim.  He found the Applicant demonstrated during the interview that he only had limited knowledge about the TLP, particularly in relation to its performance in the general election in 2024.  He viewed the Applicant’s assertion about joining an association to be formed in Hong Kong as an affiliated association of the TLP with suspect and found it was made for the purpose of fortifying his claim.  The immigration officer did not accept the Applicant was a member or a supporter of the TLP. 

14.  The immigration officer went on to assess his claim assuming he was a member of the TLP and/or have connection with it since 2017.  As he had left Pakistan in 2013, his past involvement in the PST and/or TLP, if any, had nothing to do with the current situation in Pakistan.  He found the alleged crackdowns against the TLP, if any, were not personally related to the Applicant.  In view of his low-level participation, the immigration officer found he would not have attracted considerable attention from the Pakistani authorities.  Furthermore, though once banned in 2021, the TLP was reinstated in November 2023 as a political party.  The most serious confrontation it faced should have been over.  However, it was not until the Applicant had exhausted all the judicial proceedings in Hong Kong that he raised this claim in the Request.  The immigration officer therefore considered the delay cast serious doubt on the credibility of his claim.   

15.  As for his claimed medical condition, the immigration officer accepted that the Applicant’s documents suggested that he might require certain level of medical attention, but found there was no evidence that his medical condition would surmount to the extent that he should not be refouled.  He did not consider his medical condition would give rise to a significant change of circumstances.

16.  From updated country of origin information, the immigration officer found on the political scene substantial increase in support for the TLP in the 2024 general elections as compared to the 2018 general elections for both national and provincial assembly seats.  On social services, he also found improvement in health care services in Pakistan.  These are changes to the better.

17.  For all these reasons, the immigration officer was not satisfied that the Applicant had met the requirements for making a subsequent claim and issued the 2025 Notice on behalf of the Director to refuse his Request.

Grounds for judicial review

18.  The Applicant did not advance any grounds of application in his Form 86 or supporting affirmation.  At the hearing, after having been explained the law applicable to judicial review and making of a subsequent claim.   He advanced the following grounds:

(1)  he was not provided legal assistance in prosecuting his Request;

(2)  the Director did not examine his evidence carefully; and

(3)  he requests the Court “to go through his appeal”.

19.  Under Ground (1), he complains he was not given legal assistance in prosecuting his Request.  The high standard of fairness requires that a claimant for non‑refoulement protection must be provided with adequate legal assistance.  But that high standard does not require that a claimant must be provided with legal assistance throughout the entire non-refoulement process.  It was held by the Court of Appeal in Re Zafar Muazam[2], Re Zunariyah[3], Re Zahid Abbas[4], Re Tariq Farhan[5], and Re Lopchan Subash[6], that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[7] nor in the judgment of FB v Director of Immigration[8] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The extent of assistance depends on the individual circumstances, such as complexity of the case in terms of fact or the law; and whether minor claimants are involved.  Usually and because of financial restraint, the high standard is deem attained if the claimant is provided with legal assistance at the initial stage which is the most important stage of the non-refoulement process.  He had the benefit of legal assistance in prosecuting his previous claim.  The immigration officer had referred his Request to the DLS for them to consider whether to provide him with publicly-funded legal assistance.  Unfortunately, the DLS which had represented him in the previous claim declined.  The immigration officer then advised the Applicant of his right to seek private legal representation.  In the circumstances, the high standard of fairness is deemed achieved.

20.  The Applicant’s complaint under Ground (2) is lacking in particulars.  He reiterated that his life would be in danger if returned to Pakistan.  He repeated that 64 members of the TLP were martyred. These claims had been considered by the immigration officer.  The officer gave reasons why he did not consider these facts did not amount to significant changes in circumstances: see paragraph 14.  Primarily, he did not accept the Applicant’s evidence that he had become a member of the TLP and that even if he had, his past involvement had nothing to do with the current situation in Pakistan.  Further, on the basis of up dated COI, he found that the situation in Pakistan had changed for the better in that the ban against TLP had been uplifted and TLP was reinstated in November 2023 and gained huge support in the 2024 general elections.  Such improvements would not give his present claim any realistic prospect of success.  These are finding of facts solely for the Board, which the Court in an application for judicial review may not interfere, save for errors of law, procedural unfairness or irrationality in the decision.  The Court shall revisit these issues in its overall scrutiny of the immigration officer’s decision.  The Applicant submits that on 25 October 2025, more than 1,000 people marched to the US Embassy to protest against the government.  As this issue had not been raised before the immigration officer, it is not open to the Court to review the officer’s decision on this ground.  Besides, the protest supports the immigration officer’s finding of change to the better.  It demonstrates increase support for the TLP and possible international pressure on the government to heed the calls of its subjects.

21.  As for his Ground (3), this Court will certainly scrutinise the immigration officer’s decision and look for errors of law, procedural unfairness or irrationality.  However, it must be noted that judicial review is not an avenue for revisiting the assessment by the decision maker in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh[9], Re Daljit Singh[10], Re Mudannayakalage Chaminda Pushpa Kumara[11] and Mst v Director of Immigration[12].  This Court may be determine his claim afresh.

22.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision, which the Court will turn to in the next section.

Overall scrutiny

23.  Having considered the Request, the Board’s Decision in the previous claim and having rigorously examined the 2025 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; correctly identified the issues; and properly analysed the evidence. The immigration officer observed a very high standard of fairness. He advised the Applicant on the law and procedure in prosecuting his Request and the availability of the DLS, though the DLS subsequently refused to represent him.

24.  In essence, the basis of the Applicant’s Request is that there are changes in circumstances as a result of his joining the TLP and because of changes in his health condition.  The immigration officer did not accept he had joined the TLP.  Nevertheless, he went on to consider his Request in the alternative scenario that he had indeed joined the TLP since 2017.   But he found the Request was just a continuation or modification of the previous claim by adding the TLP element.   However, the source of harm, the nature of risk and fear are all the same.  As the Applicant is in Hong Kong, he could not have any meaningful participation in the TLP in Pakistan, the immigration officer found his past involvement in PST and/or TLP had nothing to do with the current/latest situation in Pakistan which also has no relevance to the Applicant personally. 

25.  In relation to the Applicant’s claim in respect of his health issues, the immigration officer found “there is no evidence that they would surmount to the extent that [the Applicant] should not be refouled”.  I agree with that finding, but his dismissal of this ground on the basis his evidence would not surmount to the extent required may need some elaboration.  The general principle is that aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of the host state in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling state.  The fact that the alien's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the host state is not sufficient in itself to give rise to breach of BOR 3, other than in a very exceptional case: see N v The United Kingdom[13]. D v The United Kingdom[14] is an example of such a very exceptional case.  In that case,the alien was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.  The evidence submitted by the Applicant is nowhere near.

26.  On any objective view, the immigration officer’s reasons for refusing the Request are un-reproachable.  The Applicant offered no new evidence or information which suggests that there has been a significant change in circumstances since his previous claim was finally determined and that the change, if any, when taken together with the material previously submitted in support of his previous claim, would give the subsequent claim a realistic prospect of success.  These are finding of facts which are exclusively within the province of the Director to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  This Court could detect no error of law in the 2025 Notice or procedural unfairness in the making of the decision in the Notice. The 2025 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. 

Conclusion

27.  For the above reasons, the leave application is refused.

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

[1]https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001253_2025_files/the_Board's_Decision.pdf

[2] cacv 2/2018, (unreported) 23 March 2018

[3] [2018] HKCA 14

[4] [2018] HKCA 15

[5] [2018] HKCA 17

[6] [2018] HKCA 37

[7] (2004) 7 HKCFAR 187

[8] HCAL 51 of 2007

[9] [2018] HKCA 245

[10] [2018] HKCA 328

[11] [2018] HKCA 400

[12] [2018] HKCA 524

[13] European Court of Human Rights, application no. 26565/05, judgment on 27/5/2008

[14] (1997) 2 BHRC 273