MOHAMMED WASEEM v. DIRECTOR OF IMMIGRATION

HCAL 2110/2025

[2025] HKCFI 5201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2110 of 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of the documents only;          or
	consideration of the documents and oral submissions by 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 18 September 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 15 May 2025 (the “Notice”) refusing his request to make a subsequent claim (the “Request”). He has not actually identified the Director as the proposed respondent. Instead, he named “Notice of Decision 1-73, Notice of Appeal/Petition 74-91, Torture Claims Form 92-167, with Submission of the Petition 168-171” as the proposed respondent. That is an index and page number of the documents he annexed to his supporting affirmation and not the identity of a decision maker whose decision may be subject to judicial review. Out of its own motion, the Court amended his Form 86 by replacing the mis-description by the Director as the proposed respondent.

2.  The leave application was filed more than four months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged more than a month out of time. Extension of time to file the leave application is required.

3.  In AW and Director of Immigration and William Lam CACV 63/2015 (unreported) 3 November 2015, the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed with the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. The delay in this case is not so very substantial that leave may be refused on this ground alone without considering the merits of the substantive application. Hence, the Court proceeded to assess merits of his leave application for the dual purpose of considering whether to him extension of time to apply and leave to apply for judicial review.

4.  The Applicant is an Indian national. He first arrived in Hong Kong and was permitted to remain as a visitor until 13 May 2002. He overstayed. He was sentenced to 28 days’ imprisonment suspended for two years. He did not leave Hong Kong and was arrested on 14 September 2004 for overstaying. He was convicted, sentenced to 10 weeks’ imprisonment and then repatriated to India in November 2004.

5.  He arrived in Hong Kong again on 16 May 2007 on the strength of an Indian passport in the identity of another. Again, he overstayed until he was arrested on 8 December 2008. On 11 December 2008, he made a claim for protection under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”). He claimed he would be tortured or killed by his uncle for refusing to transfer his properties inherited from his grandfather to him. His claim was rejected by the Director’s decision in his Notice of Decision dated 23 August 2013 (the “2013 Notice”). His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 12 November 2013 (the “2013 Decision”).

6.  On 11 September 2013, he raised a non-refoulement claim. His non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) other than Torture Risk ground. It was rejected by the Director’s decision in his Notice of Decision dated 11 May 2018 (the “2018 Notice”). His appeal against the Director’s decision was dismissed by the Board’s decision dated 29 October 2018 (the “2018 Decision”). His application for leave to apply for judicial review of the 2018 Decision was refused by the Court of First Instance on 1 September 2022. He appealed and exhausted all avenues of appeal on 24 July 2024 with the Court of Appeal refusing him leave to appeal to the Court of Final Appeal. His torture claim and non-refoulement claim (collectively, the “previous claims”) have run their full course. However, four months later, he made a request by letter dated 29 November 2024 for making a subsequent claim (“Letter-1”).

The law

7.  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 his previous claims.

The previous claim

8.  In his previous claim, the Applicant claimed that he inherited two properties from his grandfather. His grandfather had two sons, ie the Applicant’s father and his uncle. His grandfather did not pass the land to them because the Applicant’s father was old and his uncle was an alcoholic. His uncle was angry with his grandfather’s decision and threatened to torture or killed the Applicant if he did not transfer the properties to him. The Applicant was threatened many times. The first occasion occurred in June 2001. He made a report to the police, but the police took no action and his uncle continued to harass him. On the third occasion, his uncle also slapped him. Following some similar threats, the Applicant fled India and came to Hong Kong in May 2002. After he was deported in 2004, he returned to India and lived in one of the properties.

9.  In January 2005, his uncle visited the Applicant with two unknown people (the “fourth incident”). His uncle threatened him with a gun. The Applicant was afraid. He moved to live with his maternal uncle about one and half hours’ drive away. He stayed there undisturbed for two years. Towards the end of 2006, he learned that his uncle had found out where he was. Thus, he came to Hong Kong a second time, using the identity of another.

10.  In the Torture Claim, the immigration officer found the Applicant not credible, that reasonable state protection and internal relocation feasible to mitigate or avoid the risk of harm, and that there would be no real risk of torture upon his return to India. On appeal, the Board reached the same conclusion. It did not make any finding of the Applicant’s factual case. It assessed his claim on the factual basis as he asserted, but found even on that basis he was not entitled to protection. Its finding as summarized in paragraph 36 of its 2013 Decision is as follows:

“In summary, I find that there are no substantial grounds for believing that the [Applicant] is in danger of being subjected to torture within the definition if he was returned to India. Any fear he may have is speculative at best, not real. There is no genuine claim of torture established here. Further, there is nothing to suggest that any severe pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. The [Applicant] has not established that there are substantial grounds for believing he would be at risk of being subjected to torture, which risk is not merely possible or speculation, but must be foreseeable, real and personal.”

The Board also agreed with the immigration officer’s finding about availability of state protection and internal relocation.

11.  In the non-refoulement claim, the immigration officer found the Applicant not credible, that the alleged ill-treatment did not amount to ‘torture’ under section 37U(1) of the Immigration Ordinance and that there would be no real risk of torture upon his return to India. It found state protection available and rejected the Applicant’s claim that he could not relocate to other parts of India because his uncle could locate him. On appeal, a differently constituted Board found in its 2018 Decision serious concerns about his delay in making his Torture Claim and rejected his explanation for the delay. It had significant concerns about his second trip to Hong Kong and his entry as the holder of a fraudulent passport. It did not accept his explanation for obtaining a passport in another person’s name. It had significant concerns about his returning to his own home upon deportation where, according to his case, he knew it was dangerous to live. It found numerous other significant inconsistencies in his evidence. It rejected his evidence about the fourth incident when he claim he was threatened at gun-point. It did not accept his claims that he feared his uncle or the people associated with him or that he feared being harmed or killed if he returned to India or that he could not relocate to another part of India. The Board unreservedly found he was not telling the truth. It wholly rejected the factual case presented by the Applicant. On that basis, the Board found he had failed to establish the factual basis in support of his claim to non‑refoulement protection on any of the applicable grounds under the USM.

The intended subsequent claim

12.  In Letter-1, the Applicant asserted that the same level of threat still existed. In addition, he said there had been a change of circumstances which had not previously been taken into consideration. He requested language and legal assistance. He said his life would be at risk if returned to India and he need some more time. He hoped his family members will give him good news. His request for assistance was referred to the Duty Lawyer Service (the “DLS”). The DLS subsequently represented him and furnished further information via a letter dated 25 February 2025 (“Letter-2”) in support of his Request.

13.  In his Letter-2, the Applicant sought to rely on his Torture Claim Form, Supplemental Claim Form, and the two records of screening interview in relation to his Torture Claims and Non-refoulement Claim. He furnished the following further information. His father and sister are living about 30 minutes’ walk from his home and collected rent from his old home. His father learned that his uncle was still very angry about his family due to the land dispute and did not want to talk to any of the Applicant’s family members. His uncle came to his home from time to time. However, his father did not encounter any danger. The Applicant said the Indian police will not provide any protection to him as indicated by his past experience. He thought he would be in greater danger if he approached the police because his uncle would be able to find out about it and would take more serious actions against him. He did not think internal relocation feasible because his uncle could find him through his wide connections in the All India Trinamool Congress (“TMC”) political party.

14.  The immigration officer is of the opinion that even taking his claim at its highest and considering all available information and evidence, his current fear is still related to the land dispute he had with his uncle. The land dispute and his uncle’s association with the TMC had been thoroughly considered in his previous claim and rejected as unsubstantiated. Hence, the officer considered his intended subsequent claim is largely based on his previous claim. He also considered the updates given by Applicant’s father in Letter-2 are reiteration or continuation of his previous claim. The immigration officer was not satisfied that there has been any significant change of circumstances. From updated country of origin information, the officer found there is no change of situation in India that would render state protection and internal relocation unavailable to the Applicant. In conclusion, the immigration officer was not satisfied that the Applicant had proved the requirements for making a subsequent claim under section 37ZO of the Immigration Ordinance. Hence, he issued the 2025 Notice on behalf of the Director to refuse the Applicant’s Request for making a subsequent claim.

15.  The Applicant did not advance any grounds of application in his Form 86. In his supporting affirmation, he repeated the facts of his claim and reiterated his danger returning to India. After the legal principles applicable to judicial review and to the making of a subsequent claim had been explained to him, the Applicant said he had no complaint above errors of law, procedural unfairness or irrationality in the Decision. He repeated the facts of his case and said his problems were not solved but his relatives had assured him that they will be solved in ten months. These are in effect challenges against the immigration officer’s and the Board’s finding of fact and a pleading for extension of time to stay in Hong Kong. They are not arguable grounds of judicial review. 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 irrationality in the Decision.

Overall scrutiny

16.  Having considered the Request, the Director’s 2013 and 2018 Notices, the Board’s 2013 and 2018 Decisions 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 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 referred his claim to the Duty Lawyer Service which subsequently represented him. The immigration officer found there is no new evidence or information which suggest that there has been a significant change in circumstance since the Applicant’s 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 intended 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. 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

17.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2025 Notice of Decision 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