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HCAL 326/2021
[2026] HKCFI 1455
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 326 OF 2021
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BETWEEN
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Akhtar Kamran |
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”, the names of the putative interested parties be deleted, and the decision in respect of which relief is sought be amended to “Director of Immigration’s decision dated 13 January 2021”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
3. A Restricted Proceedings Order be made against the applicant in terms of the following:-
(1) The applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the applicant in the High Court, or any appeal, including this Order, without the leave of the Court of First Instance;
(2) All applications for leave under paragraph (1) shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List;
(3) At least 7 days before filing any application for leave under paragraph (1), the applicant do notify in writing each intended defendant or respondent of his intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the applicant from any such intended defendant or respondent, that the applicant do file a copy of each such response together with his said application for leave;
(4) Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the court written representations regarding the same;
(5) All applications made pursuant to this Order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the designated Judge should otherwise direct;
(6) If the applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed;
(7) Notice of each decision by the designated Judge made pursuant to this Order be given in writing to the applicant and to each intended defendant or respondent named in the fresh proceedings;
(8) Whether or not any fresh proceedings are brought to the notice of the designated Judge, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly;
(9) No more than one leave application under paragraph (1) may be made by the applicant within any period of 3 months;
(10) No appeal shall lie from a decision of the Judge granting or refusing leave within this Order, unless leave to appeal has been granted by the Judge;
(11) This Order shall cease to have effect at the end of 5 years from the date of this Order; and
(12) A copy of this Order shall be sent to the Registrar of the High Court.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 10 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
“The NOTICE OF DECISION Dated 31 January 2021”
2. There was in fact no decision dated 31 January 2021 made by either the Director of Immigration (“the Director”) or the Torture Claims Appeal Board (“the Board”) in respect of the applicant’s non-refoulement claim.
3. The Director made a decision dated 13 January 2021 (“the Director’s 2021 Decision”) refusing the applicant’s request (“the Request”) for making a subsequent claim for non-refoulement protection under the Unified Screening Mechanism (“the USM”). The Request was made by way of a letter dated 14 August 2020.
4. It is clear that the date of decision stated in Form 86 was a mistake, as the applicant did attach a copy of the Director’s 2021 Decision to his supporting affirmation dated 10 March 2021.
Amendments
5. In Form 86, the applicant named the Director and “The Adjudicator of The Non-Refoulment Claims Petition office approved to determine the applicant Petition” as the putative respondents, when only the Director should be so named.
6. He also named the Board and “Non-Refoulment Claims Petition Office” as the putative interested parties, when the naming of a putative interested party is not required in his case.
7. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Director’s 2021 Decision.
8. Thus, on this court’s own motion, the name of the putative respondent is amended to “Director of Immigration”, the names of the putative interested parties are deleted, and the decision in respect of which relief is sought is amended to “Director of Immigration’s decision dated 13 January 2021”.
Procedural history of the applicant’s previous non-refoulement claim
9. The applicant is a male Pakistani who was refused entry to Hong Kong on 2 February 2015. He made his first claim for non-refoulement protection by way of a written representation on the same day.
10. 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 USM on 16 April 2015, and further rejected the applicant’s claim on the ground of BOR 2 Risk[4] on 10 April 2017 (collectively “the Director’s Decisions”). The Board rejected the applicant’s appeal/petition against the Director’s Decisions on all the applicable grounds under the USM on 17 May 2017 (“the Board’s Decision”).
11. The applicant applied for leave to apply for judicial review in respect of the Board’s Decision on 23 June 2017 (“the First Leave Application”). The First Leave Application was refused by the Court of First Instance (“the CFI”) on 2 May 2018[5] (“the CFI’s 2018 Decision”).
12. The applicant appealed against the CFI’s 2018 Decision to the Court of Appeal and the appeal was dismissed on 28 September 2018[6].
13. On 15 October 2018, the applicant filed a notice of motion seeking leave to appeal to the Court of Final Appeal. The applicant’s notice of motion was dismissed by the Court of Appeal on 18 January 2019[7].
14. On 28 January 2019, the applicant applied for leave from the Court of Final Appeal to appeal against the decision of the Court of Appeal and the application was dismissed by the Court of Final Appeal on 29 May 2020.
The applicant’s subsequent claim
15. On 14 August 2020 (less than 3 months after the Court of Final Appeal’s dismissal as aforesaid), the applicant made the Request and continued to claim that he would be at risk of harm in Pakistan. He repeated the background of his claim which he had previously submitted, and further submitted that a man, with whom he did not have any previous dealings, framed up false cases against him and he feared for the safety of his life if he were to return to Pakistan. The applicant also raised his request to the Director to seek publicly-funded legal assistance.
16. On 5 October 2020, the Duty Lawyer Service (“the DLS”) wrote to the Director and provided a submission prepared by the assigned duty lawyer coupled with a true copy of a First Information Report (“FIR”) furnished by the applicant regarding the Request.
17. After consideration of the applicant’s previous non-refoulement claim including the findings of credibility and facts made by the case officer of the Immigration Department and the Board, the Request, and the additional information in support of his Request submitted by the legal representative of the applicant, the Director refused the Request by way of the Director’s 2021 Decision.
The applicant’s case
18. In his first claim for non-refoulement protection, the applicant claimed that if returned to Pakistan, he would be harmed or killed by members of Pakistan Muslim League-Nawaz (“PMLN”) due to his persistent refusal to join the PMLN.
19. The applicant repeated the background of his previous claim in the Request. His alleged new risk of harm originated from the false charges against him made by a man with whom he had no previous dealings.
Oral hearings
20. This court fixed an oral hearing of the Leave Application on 4 December 2025 and the applicant was present at the hearing.
21. At the hearing, when this court asked the applicant for the grounds of his intended judicial review, he merely said that his life was still in danger. The reasons for his intended judicial review were that his family was still under attack and the situation in Pakistan was really bad. He did not want to go back to Pakistan because the army was killing people who spoke against them. He wanted to stay in Hong Kong until his problems were solved.
22. Since the applicant was basically making the same claim again, this court explained to him that a Restricted Proceedings Order (“RPO”) might be made against him and asked if he needed time to prepare for submissions to oppose any RPO which might be made against him. The applicant confirmed that he needed time to prepare his submissions and hence the hearing was adjourned.
23. At the resumed hearing on 24 February 2026, this court asked the applicant to make his submissions concerning the proposed RPO. However, the applicant only mentioned that he did not want to go back as his enemy had attacked his brother and his brother was injured. He had a medical report and a FIR to prove that. He could provide more evidence if he could be granted some more time. If he was given more time, he might have a solution, but if he went back now, he would have problems. He did not have any resources to fight his enemies. The police were not helping him because of the situation in Pakistan.
24. The applicant also asked for an adjournment for him to engage a private lawyer to represent him. However, he did not have the money and he needed to wait until his family had sold his father’s land and send him money. He might have money to engage a lawyer next month if his family managed to sell the land.
25. This court considered that the applicant had already been given ample time to prepare for his submissions. He should have enough time to seek legal representation if he really wanted it. Thus, this court was not prepared to adjourn the case further and the applicant’s request for an adjournment was refused.
Grounds for judicial review
26. 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).
27. The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 10 March 2021, the applicant merely said that he had already provided the FIR to the Director but they still refused his claim.
28. As aforesaid, the applicant failed to provide any ground for judicial review at the oral hearing before this court but merely repeated that his life was in danger and asked for more time to stay in Hong Kong.
Discussion
29. First of all, the applicant’s assertion that the Director rejected his claim when he provided proof was without any merits.
30. In fact, the Director did consider carefully the applicant’s previous claim and the new matters raised in the subsequent claim. The Director analysed the applicant’s submissions through his legal representative, including his new claim that a false case was filed against him by a man with whom he did not have any previous dealings. The Director gave very detailed analysis and reasoning in rejecting the Request in the Director’s 2021 Decision. The Director found that the FIR provided by the applicant was a mere written report of a complaint against certain people suspected of committing certain crime in Pakistan, but the actual investigation and subsequent legal proceedings on the alleged crime was still yet to be carried out. Thus, the applicant’s complaint that his Request was rejected despite he had provided the FIR is totally unfounded.
31. 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.”
32. It is clear that the Director had fully complied with the above provisions when considering the Request.
33. The Director gave detailed reasons in paragraphs 7 to 13 of the Director’s 2021 Decision for its conclusion not to accept that the applicant’s alleged risk of harm in the Request upon his return to Pakistan constituted a significant change of circumstances warranting his making of a subsequent claim. This court agrees with the Director’s conclusion and the reasoning supporting it. Thus, there was no significant change of circumstances that would enable the applicant to make a subsequent claim.
34. The Director also found that even if there was a significant change in the country condition in Pakistan after the applicant’s previous claim was finally determined, such change, when taken together with the other materials submitted in his Request and those submitted in support of his previous claim, would not give the intended subsequent claim a realistic prospect of success. The applicant’s Request was therefore refused.
35. 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.
36. Having considered the applicant’s 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.
37. 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.
Restricted Proceedings Order
38. It is clear that the applicant has abused the judicial process by making the Leave Application, as the applicant’s non-refoulement claim had already been determined by the Director’s Decisions, the Board’s Decision, and the CFI’s 2018 Decision.
39. The applicant had also exhausted all the available means of appeal, including appealing to the Court of Appeal in respect of the First Leave Application and seeking leave to appeal to the Court of Final Appeal. His appeal against the Court of Appeal’s decision was finally disposed of by the Court of Final Appeal on 29 May 2020.
40. The court has inherent jurisdiction to prevent an applicant from abusing its process by making an extended order against such an applicant (see Ng Yat Chi v Max Share Ltd and Another [2005] 1 HKLRD 473).
41. RPO is an appropriate measure to prevent abuses of the court’s process by non-refoulement claimants (see Wahyuni v Director of Immigration [2021] HKCFI 1991).
42. However, this court has to exercise its discretion by reference to the circumstances of the case and the principle of proportionality. A RPO is in substance an injunction and this court has the power to grant an injunction to safeguard the proper administration of justice. At the same time, the exercise of such power has to be balanced against a litigant’s right of access to the court (see The Secretary for Justice v Yuen Oi Yee Lisa [2006] 1 HKLRD 679).
43. Generally, such an order is called for when a vexatious litigant has already involved the appellate process unsuccessfully but persisted by re-litigating his wholly unmeritorious case all over again (see Siti Khotimah v Director of Immigration [2022] HKCA 327 and Indah v Director of Immigration [2022] HKCA 564).
44. This court has called upon the applicant to show cause why a RPO should not be made against him. As aforesaid, the applicant did not make any meaningful submission regarding the proposed RPO which might be made against him. He only repeated his danger and asked for more time to stay in Hong Kong.
45. This court finds that the applicant is indeed a vexatious litigant who has already involved the appellate process unsuccessfully but persisted by re-litigating his wholly unmeritorious case all over again, and a RPO should be ordered against him to prevent him from abusing the judicial process endlessly.
46. Accordingly, this court makes a RPO against the applicant in the terms as detailed in paragraph 3 of the orders abovementioned.
Conclusion
47. For reasons aforesaid, the Leave Application is dismissed and a RPO in the aforesaid terms is made against the applicant.
Dated the 17th day of March 2026
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( Teresa NG )
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: 17 March 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: 17 March 2026
Director of Immigration
Putative respondent’s ref. no.:
QA T/C 373/15
(Formerly RBCZ 97/15)
RBCZ 9000555/17
(RBCZ 97/15)
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 principle under Article 33 of the 1951 Convention relating to Status of Refugees.
[4] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[5] HCAL 322/2017, [2018] HKCFI 908
[6] [2018] HKCA 645
[7] [2019] HKCA 65
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