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HCAL 941/2025
[2025] HKCFI 2538
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 941 of 2025
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BETWEEN
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Waryam Muhammad |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
1. Leave to amend the Form 86 be granted; and
2. 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 22 April 2025 for leave to apply for judicial review (the “leave application”) of a decision dated 10 April 2025. He named the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) as the putative respondent and the Director of Immigration (the “Director”) as the putative interested party. He annexed a copy of Notice of Decision of the Director dated 10 April 2025 (the “Decision”) in his supporting affirmation indicating that is the decision in respect of which relief is sought. Having read the Decision, it is obvious that he is seeking leave to apply for judicial review of the decision of the Director dated 10 April 2025 (the “2025 Decision”) refusing his request to file a subsequent claim. At the hearing, he confirmed that is his intention. Accordingly, on its own motion, the Court amended his Form 86 by substituting the Director for the Board as the putative respondent and striking out the Director as the putative interested party.
Background
2. The Applicant is a Pakistani national. He sneaked into Hong Kong from Mainland China on 24 April 2009. On 27 April 2009, he made a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. His claim was assessed as a non-refoulement claim under all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4] grounds. His claim under the first three risk grounds was rejected by the Director’s Notice of Decision dated 19 March 2015 (the “2015 Decision”). He filed a Notice of Appeal against the Director’s 2015 Decision on 9 April 2015. His appeal was dismissed by the Board’s Decision dated 3 July 2015.
3. His claim under the remaining BOR 2 Risk ground was rejected by the Director’s Notice of Further Decision dated 31 March 2017 (the “2017 Decision”). On 28 April 2017, he filed a Notice of Appeal against the 2017 Decision. But on 28 January 2019, he wrote to withdraw his appeal. On 18 February 2019, the secretariat of the Board informed him that his appeal had been disposed of and finally determined by the Board and no further action will be taken by the Board. All these claims and proceedings, which are collectively called the “previous claim” has been determined and is now final.
4. On 30 August 2019, he filed a leave application in HCAL 2525/2019 seeking leave to apply judicial review of the Board’s Decision dated 27 August 2019. As noted above, there is no such decision dated 27 August 2019 in respect of the Applicant as his appeal had been disposed of six months prior. Nevertheless, on 5 March 2021, he filed an affirmation to withdraw that leave application. On 23 March 2021, Deputy High Court Judge CP Pang ordered that the leave application be withdrawn.
5. On 19 November 2024, the Applicant wrote to the Director (“Letter 1”) to request for making a subsequent claim (the “Request”). An immigration officer served on him a letter informing him of the requirements for making a subsequent claim and introducing him to the publicly funded legal aid service by the Duty Lawyer Scheme (“DLS”). On 13 December 2024, the DLS informed the Immigration Department that they would not represent the Applicant. By a letter dated 16 December 2024, the immigration officer informed the Applicant of the decision of the DLS and his right to engage the services of a private lawyer. He also requested the Applicant to provide further evidence in support of his Request. That letter was returned undelivered as the Applicant had moved, having been released on recognizance. A similar letter was served on him on 21 January 2025. He was requested to provide further evidence in support of his Request by 4 February 2025 (“Letter 2”). Letter 2 also contained some ancillary information to enable him to provide the further information. He did not respond. Having assessed his Request on all available information, the immigration officer, on behalf of the Director, issued Decision refusing his Request for making a subsequent claim. This is the Decision which the Applicant now seeks to review.
The Applicant’s previous claim
6. In gist, the Applicant’s previous claim is that, if returned to Pakistan, he would be harmed or killed by his brother-in-law, his brother-in-law’s son and their people (collectively, “his enemies”) due to his refusal of his brother-in-law’s marriage proposal between his brother-in-law’s son and the Applicant’s daughter. His case is that he had a verbal agreement with his brother that his brother’s son will marry his daughter. After his refusal of the marriage proposal, he encountered two attacks and three to four disturbances from his enemies. The Applicant and his family did not affiliate with any political party or government official in Pakistan. He believed his brother-in-law’s people had political affiliations with the Pakistan Peoples Party (the “PPP”), but the PPP had never been involved in his dispute in the marriage proposal.
7. One night in 2007, his enemies carrying pistols and sticks broke into his house. The Applicant fled to his neighbour’s house for protection. His neighbours confronted his enemies. His enemies left without harming anybody (the “first attack”).
8. Then, about 15 to 20 days later, his neighbour told the Applicant that his enemies were going to launch another attack. So the Applicant moved to Village Pulwadacar, seven to eight kilometres away. His neighbour told him that some intruders had been to his house shortly after he had moved (the “second attack”). He reported the incident to the police, but the police did not take any follow-up action. He stayed with his family in Village Pulwadacar without incident for two years.
9. Then, on three to four occasions, his enemies blocked his usual route to his home in Village Pulwadacar. Whenever alerted of the presence of his enemies, the Applicant took another route. He had never been assaulted or injured nor had his family members been threatened.
10. Believing that his enemies, who knew his new address, will harm him, he fled to Hong Kong.
The Applicant’s Request and the immigration officer’s finding
11. The basis of the Applicant’s Request as stated in his Letter 1 is “because my life in danger due to political problem with PMLN. They want to kill me because I support Imran Khan.” This is a new assertion which had not surfaced in any form under his previous claim. His evidence in his previous claim was that he and his family had no political affiliation with any party and he mentioned nothing about Imran Khan. He believed his enemies had affiliation with the PPP, but not the PMLN as he now asserted.
12. The immigration officer asked the Applicant for supporting evidence, none was forthcoming. In fact, he never responded. Hence, the officer came to the conclusion that there is insufficient evidence to demonstrate that there is a significant change of circumstances of his case warranting the making of a subsequent claim.
Legal principles applicable to judicial review
13. The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
14. The Applicant did not advance any grounds of application. In his supporting affirmation, he said he did not agree with the Decision. At the hearing, after the above legal principles have been explained to the Applicant, he confirmed he had no complaint about errors of law, procedural unfairness or irrationality in the Decision. He said he was initially given legal assistance, but subsequently the DLS refused to represent him. He did not know why. On the procedural history, he had been provided with legal assistance in his previous claim up to the stage before the immigration officer, though not before the Board. In respect of his current Request, he had been referred to the DLS. As to why the DLS refused to assist him is a matter privy between him and the DLS. Usually, the high standard of fairness would only require legal representation to be provided to a claimant at the initial stages of his claim, but at not all stages of the non-refoulement proceeding, especially the post-screening interview stage or in subsequent claim.
15. At the hearing, the Applicant volunteered information about other matters not directed at or related to the Decision. He said in the place where he used to live in Pakistan, people are arrested. His brother was put in prison and he did not know where he is. Thus, he went to China for years. Then he fell sick. He came to Hong Kong and received treatment in hospital. He had a lot of medical problems, including one of his ears. He could not pay for the medical expenses. He had applied for ISS (financial assistance from the International Social Service) twice, but his applications were refused. His main concerns in relation to which he now seeks the Court’s assistance by way of judicial review are that he be given ISS, provided with free medical treatment and given a Form 8 (recognizance). None of these matters are relevant to his leave application.
16. In effect, the Applicant is seeking to challenge the Board’s finding of fact that he has adduced insufficient evidence to demonstrate there is a significant change of circumstances in his case warranting his making of a subsequent claim. This is a matter of fact solely for the Director which the court in a judicial review will not interfere. In the absence of specific grounds of application, the Court could only focus on the usual challenges in a judicial review such as errors of law, procedural unfairness or irrationality in the Decision.
Overall scrutiny
17. Having rigorously examined the Decision, the Request, his previous claim, the evidence and all the circumstances with anxious scrutiny, the Court is satisfied that the immigration officer understood the law and key legal principles relating to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; 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 subsequently DLS declined to represent him. That is a matter privy between him and the DLS. The Applicant repeatedly ignored the immigration officer’s request for supporting evidence in relation to his intended subsequent claim. On any objective view, his Request is based on a new claim which is wholly different from his previous claim, but there is a total absence of new evidence or new interpretation of the existing evidence which could support a change in circumstance as to entitle the Applicant to make a subsequent claim. It was on that basis that the immigration officer found the change in circumstance when taken together with the material previously submitted in support of the previous claim would not give the intended subsequent claim a realistic prospect of success.
18. 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 Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
19. For the above reasons, leave is granted to amend the Form 86 in the manner as described in paragraph 1 and the Applicant’s amended application for leave to apply for judicial review of the Decision is refused.
Dated the 17th day of June 2025
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( Seline Sze )
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 the Applicant’s 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 to the Applicant
on 17/06/2025
Waryam Muhammad
Applicant’s ref. no: |
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Sent 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 17/06/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
Director of Immigration
Putative Interested Party’s ref. no.:
ImmD RA 7/37/C (Fomerly RBCZ/0001089/09 & RBCZ/9001681/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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