SIDDIQUE AAMIR v. DIRECTOR OF IMMIGRATION

HCAL 149/2021

[2026] HKCFI 1058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 149 of 2021

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 oral submissions by the Applicant in open court;

1.  The order of this Court dated 8 December 2025 refusing the Applicant’s leave application be set aside; and

2.  Leave to apply for Judicial Review be granted.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 February 2021 for leave to apply for judicial review (the “leave application”) of the decision of an immigration officer by the name of YIU Fung-yee (“Officer YIU”) on behalf of the Director of Immigration (the “Director”) dated 19 January 2021.

2.  His leave application was first heard on 8 December 2025. According to documents discovered from the Immigration Department and the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) as at the date of that hearing, the Applicant had raised a non-refoulement claim on 3 March 2014. His claim was refused by an immigration officer by the name of WONG Lam Ping (“Officer WONG”) on behalf of the Director in a Notice of Decision dated 23 October 2017 (the “2017 Notice”). He appealed the 2017 Notice, but withdrew his appeal on 5 December 2017. According to the documents then available, neither the Board nor the Director, Officer YIU on his behalf, had made any decision dated 19 January 2021 in respect of the Applicant.

3.  At the hearing, the Applicant was shown the Form 86 and referred to his signature. He was asked to produce a copy of the decision by Officer YIU dated 19 January 2021 or the decision in respect of which relief was sought. He said he did not have the decision with him. He was not sure if he had a copy of that decision at home. He could not remember what decision he wanted to review. He was not sure if that decision actually existed because someone prepared the Form 86 for him. The Court then took him through the procedural history of his non-refoulement application as outlined above. He admitted it was correct. He admitted he had withdrawn his appeal and received a letter from the secretariat of the Board dated 2 May 2018 acknowledging that his appeal was withdrawn.

4.  On the basis of these information, the Court came to the conclusion that the only non-refoulement decision relating to the Applicant was Officer WONG’s decision in the 2017 Notice and that the decision by Officer YIU dated 19 January 2021 did not exist and, if it existed, was not in respect of the Applicant. By the time the leave application was filed, a leave application in respect of the decision in the 2017 Notice was more than three years out of time. Accordingly, this Court issued an Order on 8 December 2025 refusing him leave to file the leave application out of time and refusing his leave application.

5.  However, one day after the Order was issued, the Director produced a decision by Officer YIU dated 19 January 2021, which is a decision refusing the Applicant’s request to file a subsequent claim. Accordingly, this Court set aside its Order dated 8 December 2025 and rescheduled a hearing of the leave application on 19 January 2026.

The Applicant’s previous claim

6.  The Applicant is a Pakistani national, now aged 45. He arrived at Hong Kong as a visitor on 24 December 2012 and overstayed since 14 January 2013. Then, he raised a non-refoulement claim by written representation on 3 March 2014. In gist, he claimed he would be tortured or killed, if returned to Pakistan, by gangsters affiliated to the Pakistan Muslim League (Nawaz) political party (“PMLN”) for refusing to pay them protection money (the “previous claim”). That previous claim was rejected by the Director’s 2017 Notice. As mentioned above, the Applicant had appealed that 2017 Notice, but withdrew it. Thus, the decision in the 2017 Notice is final. However, he did not leave Hong Kong. About 32 months later, he made a request by letter dated 12 June 2020 to file a subsequent claim (the “Request”).

7.  His previous claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s 2017 Notice. Officer Wong assessed his claim on the basis of the facts as he asserted. He accepted that the PMLN was the ruling political party in Pakistan; that his business partner had seen one of the gangsters attending a political rally organized by the PMLN; that the gangsters had approached the Applicant and his business partner in their store and demanded extortion money in September 2012, but left without doing anything after their demand was refused; that the Applicant’s business partner later received a call from the gangsters threatening to kill both of them if they did not pay, but no threat was delivered to the Applicant; that his business partner was later kidnapped and killed; and that the Applicant’s wife was assaulted by the gangsters with gun butt when they could not find the Applicant. The Applicant had not been contacted by the gangsters again before he fled to Hong Kong. While Officer Wong accepted that the Applicant’s business partner was kidnapped and murdered, but he could find no evidence or nexus connecting the murderers with the gangsters who demanded extortion money. He also accepted that the gangsters hit the Applicant’s wife with gun butt, but they did not cause her any serious harm. He found the gangsters had no intention to physically hurt her and that the Applicant’s perceived risk of harm from the gangsters was not as imminent and substantial as the Applicant asserted. He took the view that the low intensity and frequency of ill-treatment inflicted on the Applicant in the past was indicative of the unlikeliness of future risk of harm upon his return to Pakistan. He found the Applicant’s case was a typical case extortion of money by a group of unknown gangsters who had no intention to kill or seriously harm the Applicant.

8.  Officer Wong rejected the Applicant’s argument that the gangsters were affiliated with the PMLN merely because his business partner had seen one of them attending a political rally of the PMLN as speculative. While the country of origin information (“COI”) supports the Applicant’s argument that the police side with the ruling party, Officer Wong found other COI showing that the Pakistani government has taken practical steps to monitor the conduct of the police and improve their effectiveness. On balance, he found adequate state protection available and internal relocation feasible to avoid the harm.

9.  For all these reasons, Officer Wong rejected the Applicant’s claims. Those findings of his are final.

The law

10.  Under the USM, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance. The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success. In deciding whether the applicant may make a subsequent claim, the immigration officer may 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.

The intended subsequent claim

11.  In response to his Request, Officer YIU advised him by letter dated 19 January 2021 of the requirements for making a subsequent claim and the availability of the publicly-funded legal assistance. At his request, Officer YIU referred his case to the Duty Lawyer Service (“DLS”). The DLS took over the conduct of his Request and submitted further documents on the Applicant’s behalf on 7 January in support of his subsequent claim.

12.  The Applicant explained that he withdrew his earlier leave application because his wife told him that the gangsters had stopped visiting his home looking for him. However, that is untrue. His wife lied because she wanted the Applicant to return to Pakistan. In fact, the gangsters never ceased visiting his home. They threatened that they would definitely kill the Applicant if he returned. The Applicant’s wife moved to Village Deerkey which was about 20 kilometres away from her home village. However, the gangsters still located her and threatened her.

13.  His wife told him that their daughter had been followed by some unknown PMLN associates when she was returning home from school; and their two sons were abducted by the PMLN associates once, though they were returned home the same day. The kidnappers verbally threatened her that the kidnapping was a warning and stressed that they would kill the Applicant’s entire family if he did not pay.

14.  His wife told him that his father who was still living in his home village had been severely beaten by some PMLN associates requiring hospitalisation for two weeks. He produced a medical certificate showing that his father was admitted to hospital on 13 May 2020 and discharged on 26 May 2020 and the diagnosis was “Blunt/Sharp”, presumably meaning that his father suffered some injuries caused by some blunt/sharp objects.

15.  In July 2020, the Applicant’s wife told him that his father was attacked again soon after his discharge from hospital. This time, he suffered minor injuries.

16.  Then, in August 2020, the Applicant’s sister-in-law informed him that his wife passed away after she had been brutally assaulted by the PMLN gangsters. He submitted a death certificate in the name of his wife showing that she was admitted to hospital on 17 August 2020 and died on 20 August 2020. The diagnosis is described as “Blunt/Sharp” and the cause of death is “cardiac pulmonary arrested.”

The immigration officer’s decision

17.  Officer YIU was of the opinion that all the evidence submitted by the Applicant were just hearsay which may not carry any weight because it could not be tested and could not assist to establish the facts stated in the hearsay. She shared Officer Wong’s finding that the gangsters had no intention to seriously harm the Applicant’s wife. On the information presented by the Applicant, despite the gangsters had attended her home to check the Applicant’s whereabouts, they never physically hurt her again, except for the claimed assault in August 2020. Officer YIU noted it was the Applicant’s case that his wife died of the serious injuries occasioned from the assault, but she also noted the absence of substantive evidence of any police investigation sought in respect of such an incident. She found the death certificate at the highest proved his wife’s death but not the reason or the underlying cause. Though accepting that the wife died two days after her admission to the hospital, Officer YIU was not satisfied that her death and the assault were causally connected. The medical certificate of the father indicated that he suffered some injuries caused by some “Blunt/Sharp” object. According to the wife, those injuries were relatively minor. In conclusion, Officer YIU found the Applicant’s claim that the gangsters will definitely kill him if he is refouled is too far‑fetched and a speculation on his part. She found the threat from the PMLN gangsters had been duly considered in his previous claim and does not constitute a significant change of circumstance which would give the intended subsequent claim a realistic prospect of success. Hence, she refused his Request.

The legal principles applicable to judicial review

18.  The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh. The primary decision-makers in a claim for non‑refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[1].

Grounds for judicial review

19.  In his supporting affirmation, the Applicant reiterated that it is not safe for him to return to Pakistan. In effect, this is a direct challenge of the immigration officer’s finding of fact which is not permissible in an application for judicial review, save for errors of law, procedural unfairness or irrationality in the decision.

20.  He annexed a three-page document titled ‘Grounds of Appeal’ which criticized public safety in Pakistan. It quoted criticisms allegedly from the Centre for International and Strategic Analysis and The Express Tribune, but the source materials were not produced. He submitted that the law is only for the rich and not for ordinary people like him. He said bribery is common and there are lots of murder incidents in which no one is arrested. These are general country of origin information. They do not specifically address the Applicant’s case. Similar and contrary COI from authoritative and credible sources had been considered by Officer WONG who found as a fact that adequate state protection is available. That is also a finding of fact solely for the immigration officer. His submissions are therefore also challenges against the finding of fact by the immigration officer which is impermissible except for errors of law, procedural unfairness or irrationality in the decision.

21.  In the absence of proper or arguable grounds of application, the court in an application for leave to apply for judicial review could only focus on the above vitiating elements in the decision.

Overall scrutiny

22.  Having considered the Request, the Director’s 2025 Notice, the 2017 Notice and the Board’s Decisions in the previous claim and having rigorously examined the 2025 Notice with anxious scrutiny, the Court has serious concerns that Officer YIU might have erred in law in her evaluation of the Applicant’s evidence and in failing to apply the low standard of proof appropriate for non-refoulement claims. She noted that the evidence submitted by the Applicant are all hearsay. She correctly reminded herself that hearsay evidence is not in itself inadmissible, but subject to weight. She said at paragraph 27 of the 2025 Notice:

“27. … Hearsay evidence is not itself inadmissible, but subject to wait (sic). Hearsay evidence may not carry any weight mainly because it cannot be tested in a hearing or assist to establish those facts, or show the truth of the matters alleged.

28. Your claim of the gangsters will definitely kill you if you are refouled is far too fetched. It is merely your speculation without proof.

29. All in all, your threat from the gangsters PMLN has been duly considered in your previous claim (see paragraph 6 above). Therefore, they do not constitute a significant change of circumstance which would give the intended subsequent claim a realistic prospect of success.”

23.  The legal principle she quoted in paragraph 27 of the 2025 Notice is absolutely correct, but that is only part of what a fact finder should consider in evaluating a piece of hearsay evidence. The hearsay evidence should be considered against the factual circumstances in which it arose. On a fair reading of these three paragraphs, it seems after finding that the hearsay evidence could not be tested, Officer YIU rejected the hearsay evidence right away as if it never existed. Then, she jumped to the conclusion that the Applicant’s claim that the gangsters will kill the Applicant is too far-fetched without giving any reasons.

24.  She obviously wholly ignored the sister-in-law’s evidence that the Applicant’s wife had been brutally assaulted, taken to the hospital and died two days later. These are all hearsay, but they are supported by the death certificate which certified that the wife was admitted on 17 August and died on 20 August 2020. The cause of death of the wife was described as “cardiac pulmonary arrested”. I accept as Officer YIU did that the certificate is not sufficient evidence that the wife died of the assault. But, unless there is something to suggest that the death certificate is forged or unauthentic or otherwise unreliable, it is likely that the wife had been assaulted as she was diagnosed as suffering from some blunt/sharp injuries. There is nothing to suggest that the death certificate is irregular. Though the certificate is hearsay evidence in itself, it nevertheless certified injuries consistent with and corroborates the sister-in-law’s hearsay evidence. It certified the wife’s death, which was seemingly accepted by Officer YIU. It is reasonable arguable that Officer YIU erred in law by failing to properly evaluate the veracity of the sister-in-law’s evidence in its proper factual circumstances. It is also reasonably arguable that Officer YIU erred in law by adopting the ordinary standard of proof instead of the low standard of proof appropriate to non-refoulement claims.

25.  Another of my concern is that Officer YIU refused the Request simply on those four sentences quoted in paragraphs 27 to 29. There was no discussion why she refused the Request. There was no mention of the evidence about the daughter being followed. There was no discussion about the evidence that the sons were kidnapped and then returned with a warning. It seems all these were swept under the hearsay carpet or simply disregarded because the threats from the PMLN gangsters had been considered by Officer WONG. Had these evidence been considered and given weight to, it is at least arguable that there are substantial changes in circumstances. The gangsters have stepped up their action. They have changed their intention. They are serious with the execution of their threat as evidenced by their brutally assaulting the Applicant’s wife and his father. Arguably, Officer YIU committed an error of law in making a decision without considering all the evidence and without giving reasons. For that reason, it is also arguable that the decision is irrational.

26.  That said, on the evidence, it would have been open to an immigration officer to find the Applicant’s reasons for making the subsequent claim incredible (ie his wife lied to him in the hope of bringing him back home) in view of his withdrawal of his leave application and the three years’ delay in making the Request. It would have been open to an immigration officer to find his subsequent claim implausible and far-fetched. It would have been far-fetched for some gangsters to attempt to extort money from someone who had refused to pay and had left Pakistan 12 years ago. It would also have been far-fetched for the gangsters to engage so much effort in pursuing him, visiting his family, locating them, assaulting his father and his wife, kidnapping his children etc for all these 12 years. It would have been far easier, quicker and more rewarding to extort money from many of the entrepreneurs on the streets of Pakistan. The Applicant’s case is really far-fetched. But this is not a finding of fact which this Court may make. Officer YIU made that finding, but arguably she erred by failing to give reasons and erred by not properly considering all the evidence.

27.  In conclusion, it is at least arguable that the decision in the 2025 Notice is the result of error of law and is irrational and the proposed judicial review has good prospect of success.

Conclusion

28.  For the above reasons, leave to apply for judicial review is allowed. The Applicant is reminded to comply with the standard directions set out in the following page of this Form CALL-1 within fourteen days. He is particularly warned that the leave to apply for judicial review will lapse after fourteen days from the date of this Form CALL-1 and an application for re-grant may not necessarily be entertained.

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