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HCAL 1188/2021
[2026] HKCFI 2463
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1188 OF 2021
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BETWEEN
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Mohammed Aslam |
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. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 24 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 9 August 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 a letter dated 2 December 2020, which was supported by “Document I” submitted by the applicant on 26 May 2021.
Amendment
2. In Form 86, the applicant named Immigration Department as the putative respondent when the Director should be so named.
3. 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
4. The applicant is a male Indian who had overstayed in Hong Kong since 2 August 2006. He was arrested by the police on 11 March 2008 and was released on recognizance on 15 April 2008. He then sought for non-refoulement protection in Hong Kong by a written signification dated 9 July 2008.
5. 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 7 January 2015 (“the Director’s 2015 Decision”). The applicant’s appeal/petition against the Director’s 2015 Decision was dismissed by the Torture Claims Appeal Board (“the Board”) on 7 December 2016 (“the Board’s 2016 Decision”).
6. Subsequently, the Director made a further decision on 16 October 2017 (“the Director’s 2017 Decision”) and rejected the applicant’s non-refoulement claim on the ground of BOR 2 Risk[4]. The applicant petitioned to the Board against the Director’s 2017 Decision, but withdrew his petition by his letter dated 27 November 2017. On 4 December 2017, the Board directed that the Director’s 2017 Decision was confirmed.
7. The applicant was repatriated to India on 20 November 2019.
The applicant’s subsequent claim
8. On 17 November 2020, the applicant surrendered to the Director and claimed that he sneaked into Hong Kong on 27 January 2020.
9. In an interview report with the Immigration Department dated 2 December 2020, the applicant revealed his intention to seek non-refoulement protection in Hong Kong and then made the Request.
10. By way of two letters dated 24 February 2021 and 31 March 2021 respectively, the Director invited the applicant to provide further information and evidence in writing in support of the Request. On 26 May 2021, the applicant submitted Document I to the Director. Document 1 was a 9-page document and appeared to be mobile phone screen print-outs.
11. The applicant then attended an interview on 27 July 2021, during which he was asked to provide clarifications and information in relation to the Request.
12. After consideration of the applicant’s previous non-refoulement claim, the Request, the further information and evidence submitted by the applicant in support of the Request including Document I and the applicant’s responses at the interview on 27 July 2021, the Director refused the Request by way of the Director’s 2021 Decision.
The applicant’s case
13. In his first claim for non-refoulement protection, the applicant claimed that if refouled to India, his moneylender Sadiq would inflict violence on him and even kill him owing to his money dispute with Sadiq.
14. In the Request, the applicant first stated that he would be killed by Sadiq because he could not return the money which he borrowed for his business. The applicant also submitted Document I as described above.
15. At the interview on 27 July 2021, the applicant mentioned that he was framed up in a murder case by the BJP leader. He saw a letter from a lawyer telling him that there was a charge against him. The police came to find him at his place for charging him for the murder offence. He was not at home when the police came. The court then issued an arrest warrant against him which was served on his lawyer.
16. When asked about the progress of the case against him, the applicant said that he had no other updates. When asked to clarify what Document I was, the applicant said that it was related to his ongoing case and his lawyer sent it to him via WhatsApp. The applicant said that he did not know or understand the content of Document I. His lawyer only asked him to give this document to any officer who asked him for the details.
17. The applicant admitted that he took flight from India to China on the strength of his own passport and encountered no problem on his last departure from India through the Indian Immigration before he sneaked into Hong Kong again.
18. Thus, the applicant’s initial claim in the Request was related to his previous claim, which arose from his fear of violence or death at the hands of Sadiq. The Director considered that the applicant’s risk arising from his monetary dispute with Sadiq had been duly assessed previously.
19. As to the second limb of the Request, namely that he was framed up with a murder case by the BJP leader and the police had visited his home while he was not there, the Director had considered all the information and evidence provided by the applicant, including Document I and his responses at the interview on 27 July 2021.
20. The Director noted that (1) Document I was a document sent by the applicant’s lawyer in India for him to submit to the Immigration Department, yet the applicant had no knowledge of the document; and (2) even though the applicant said that he was being represented by his lawyer regarding the alleged murder case against him, he could not provide any detail of the case.
21. The Director assessed that if the applicant was indeed an accused person in a murder case and he was legally represented, the applicant would not have no knowledge about such an important document and the progress of the case. Furthermore, the Director noted that the applicant last left India by flight and passed the Indian Immigration clearance without any problem. The applicant’s claimed facts did not support his allegation that he was an accused or a wanted person in India.
22. Hence, the Director did not accept the applicant’s fear of harm or threat of life for being a wanted person in his country.
23. Having considered both limbs of the applicant’s Request, the Director decided that the applicant’s claimed risks in his intended subsequent claim could not amount to a significant change of circumstances and had no realistic prospects of success.
Oral hearing
24. The applicant requested for an oral hearing of the Leave Application and his case was heard on 16 April 2026.
25. At the hearing, the applicant admitted that he made the Request based on the same facts as his previous non-refoulement claim and there was no change in circumstances. He did not mention that he was framed up with a murder case at all.
26. When this court asked the applicant for the grounds of his intended judicial review, he merely replied that the same torture happened to him in India. However, he confirmed that he would rely on the grounds that were laid out in his supporting affirmation dated 24 August 2021. He did not elaborate on those grounds, but said that it was the same reason he mentioned for his application, ie if he returned to India, they would torture him and it was dangerous for his life and hence he could not go back.
Grounds for judicial review
27. 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).
28. In the applicant’s supporting affirmation dated 24 August 2021, he mentioned a few grounds for the intended judicial review, which are summarised as follows:-
(1) He was a genuine non-refoulement claimant who faced all these dangerous problems, harassment and torture in his country and he was unable to find any place to stay safely;
(2) He believed that the Director had reached the wrong decision and rejected his claim without any proper inquiry and without carefully understanding his situation;
(3) If he did not run away, he certainly would have been killed by his enemies and his problems were getting more and more life-threatening day after day.
29. As aforesaid, the applicant did not elaborate on any of the above grounds at the oral hearing before this court. Rather, he admitted that the Request was made based on the same facts as his previous non-refoulement claim and there was no change in circumstances.
30. He only added at the oral hearing that the same torture happened to him in India and danger still existed there.
Discussion
31. First of all, the applicant’s danger in his home country arising from his monetary dispute with Sadiq had been duly assessed by the Director and the Board in the Director’s 2015 Decision, the Director’s 2017 Decision and the Board’s 2016 Decision respectively. His alleged danger arising from the alleged murder case was also duly considered by the Director when dealing with the Request.
32. As to his general allegations that the Director had reached the wrong decision and rejected his claim without any proper inquiry and without carefully understanding his situation, 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”. Thus, the applicant’s general allegations as aforesaid cannot help the applicant at all.
33. In fact, the applicant’s allegation that the Director rejected his claim without any proper inquiry and without carefully understanding his situation is simply not true.
34. As can be seen in the Director’s 2021 Decision, the Director had carefully analysed both limbs of the applicant’s Request and had given full and detailed reasoning in rejecting the Request.
35. Thus, none of the assertions made by the applicant, whether by way of his affirmation dated 24 August 2021 or his oral submission at the hearing before this court, constitutes a valid ground for challenging the Director’s 2021 Decision.
36. 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.”
37. It is clear that the Director had fully complied with the above provisions when considering the Request.
38. The Director found that the basis of the first limb of the applicant’s intended subsequent claim was the same as that of the applicant’s previous claim.
39. The Director had also duly considered the second limb of the Request and rejected the applicant’s fear of risk of harm or threat of life for being a wanted person in his home country.
40. Thus, the Director 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 a realistic prospect of success.
41. These were findings of facts within the exclusive ambit of the Director, and this court in a judicial review will not interfere with them save when such findings involved errors of law, procedural unfairness or irrationality.
42. Having considered the Request, and having rigorously examined the Director’s 2021 Decision with anxious scrutiny, this court is satisfied that the Director 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 analysed the evidence with due care. The Director observed a very high standard of fairness. This court finds no errors of law in the Director’s 2021 Decision or procedural unfairness in the making of that decision. The Director’s 2021 Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational.
43. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
44. For reasons aforesaid, the Leave Application is dismissed.
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/9001485/16; RBCZ/1429/08)
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.
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