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HCAL 283/2021
[2026] HKCFI 300
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 283 OF 2021
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BETWEEN
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Rasu Ramakrishnan |
Applicant |
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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”, “Director of Immigration” be deleted as the putative interested party, and the decision in respect of which relief is sought be amended to “Director of Immigration’s decision dated 11 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 4 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 11 January 2021 without identifying the decision-maker.
2. The Director of Immigration (“the Director”) made a decision dated 11 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 21 August 2020.
3. It is clear that the decision in respect of which relief is sought in the Leave Application is the Director’s 2021 Decision.
Amendments
4. The applicant named the Torture Claims Appeal Board (“the Board”) as the putative respondent and the Director the putative interested party respectively in Form 86. As the Leave Application is only in respect of the Director’s 2021 Decision, only the Director should be named as the putative respondent, and it is not necessary to name the Director as the putative interested party.
5. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Director’s 2021 Decision.
6. Thus, on this court’s own motion, the name of the putative respondent is amended to “Director of Immigration”, “Director of Immigration” is deleted as the putative interested party and the decision in respect of which relief is sought is amended to “Director of Immigration’s decision dated 11 January 2021”.
Procedural history of the applicant’s previous non-refoulement claim
7. The applicant is a male Indian who was arrested by the Hong Kong police on 20 May 2014 for overstaying in Hong Kong. He made his first claim for non-refoulement protection by way of a written signification dated 23 May 2014.
8. The Director rejected the applicant’s non-refoulement claim on the grounds of Torture Risk[1], ROR 3 Risk[2] and Persecution Risk[3] under the USM on 21 March 2016, and further rejected the applicant’s claim on the ground of BOR 2 Risk[4] on 30 August 2017 (collectively “the Director’s 2016/2017 Decisions”). The Board rejected the applicant’s appeal/petition against the Director’s 2016/2017 Decisions on all the applicable grounds under the USM on 19 January 2018 (“the Board’s Decision”).
9. The applicant applied for leave to apply for judicial review in respect of the Director’s 2016/2017 Decisions and the Board’s Decision on 2 February 2018 (“the Previous Leave Application”). DHCJ Josiah Lam (as he then was) refused the Previous Leave Application on 13 September 2018[5] (“the CFI’s 2018 Decision”).
10. The applicant appealed against the CFI’s 2018 Decision to the Court of Appeal and the appeal was dismissed on 22 February 2019[6].
11. On 13 March 2019, 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 28 May 2019[7]. The applicant’s application for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Final Appeal on 4 August 2020.
The applicant’s subsequent claim
12. On 21 August 2020, merely 17 days after the applicant’s application for leave to appeal against the decision of the Court of Appeal was dismissed by the Court of Final Appeal, the applicant made the Request and continued to claim that he would be at risk of harm from his creditor Sellur Raju if he were to be refouled to India.
13. Upon receiving the Request, the Director informed the applicant of the requirement of making a subsequent claim by way of a letter dated 9 September 2020 and served on the applicant by hand. On the same day, the applicant requested a duty lawyer to assist him in the Request. The Director referred the applicant to the Duty Lawyer Service (“the DLS”) also on the same day.
14. On 30 October 2020, the DLS wrote to the Director to confirm their provision of publicly-funded legal assistance to the applicant and attached additional information in relation to the Request.
15. 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
16. In his first claim for non-refoulement protection, the applicant claimed that if returned to India, he would be harmed or killed as he failed to repay money to Sellur Raju who was the minister for cooperation of the Tamil Nadu state government and the applicant also failed to redeem jewellery for his paternal uncle.
17. The applicant’s claim in the Request was largely based on the previous claim of threat from Sellur Raju.
Oral hearing
18. This court fixed an oral hearing of the Leave Application on 4 December 2025 and the applicant was present at the hearing.
19. At the hearing, when this court asked the applicant for the grounds of his intended judicial review, he merely said that he still had issues in his home country, and when he spoke to his wife, the wife informed him that the same problem was still there.
20. Since the applicant was making the same claim again, this court had sent a letter dated 14 November 2025 to invite him to make submissions, if any, on a Restricted Proceedings Order (“RPO”) which might be made against him.
21. At the oral hearing, this court told the applicant that a RPO might be ordered against him and he was asked to make his submissions concerning the proposed RPO. However, the applicant confirmed that he had nothing to say in respect of the proposed RPO.
Grounds for judicial review
22. 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).
23. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 4 March 2021. He merely stated in the affirmation that if he returned, he would be killed by his enemy.
24. As aforesaid, the applicant failed to advance any ground for judicial review at the oral hearing before this court either.
Discussion
25. 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.”
26. It is clear that the Director had fully complied with the above provisions when considering the Request.
27. The Director considered that the additional information provided by the applicant was just some updates of the situation of his family members in relation to his previous dispute with Sellur Raju. The incidents mentioned were still originated from his dispute with Sellur Raju, which had been raised and assessed in his previous claim, and was concluded as not substantiated.
28. It had been assessed previously that the availability of state protection in India further lowered or negated the level of risk he claimed.
29. In the Request, the applicant claimed that his cousin Mariyappan Periasamy and his friend Manikandan were injured in an incident in August 2020 when Sellur Raju’s henchmen armed with aruvals and long knives approached them. Manikandan made a report to the police and the case was forwarded to the Virudhunagar Law Court for further proceedings, which, as found by the Director, indicated that avenue of complaint was available in India and state protection was available if the applicant resorted to it upon his return to India.
30. The Director found that in any event, even if it was accepted that there was still pressure exerted to his family from Sellur Raju, it did not amount to a significant change of circumstance of his case.
31. Thus, having examined all the available information/evidence, the Director did not accept that the information submitted by the applicant constituted a significant change of circumstance which would give the subsequent claim a realistic prospect of success. The applicant’s Request was therefore refused.
32. 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.
33. 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.
34. 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
35. 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 2016/2017 Decisions, the Board’s Decision and the CFI’s 2018 Decision.
36. The applicant had also exhausted all the available means of appeal, including appealing to the Court of Appeal in respect of the Previous Leave Application and seeking leave to appeal to the Court of Final Appeal. His appeal against the Court of Appeal’s decision was finally dismissed by the Court of Final Appeal on 4 August 2020.
37. 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).
38. 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).
39. 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).
40. 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).
41. 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 submission regarding the proposed RPO which might be made against him.
42. 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.
43. Accordingly, this court makes a RPO against the applicant in the following terms:-
(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.
Conclusion
44. For reasons aforesaid, the Leave Application is dismissed and a RPO in the aforesaid terms is made against the applicant.
Dated the 14th day of January 2026
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( Irene 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: 14 January 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: 14 January 2026
Director of Immigration
Putative respondent’s ref. no.:
L/M (21697) in ImmD RA 7/37/C
(formerly RBCZ/9002177/17 & RBCZ/1955/14)
QA T/C 2278/15
(formerly RBCZ 1955/14)
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 153/2018 [2018] HKCFI 2052
[6] CACV 472/2018 [2019] HKCA 202
[7] CACV 472/2018 [2019] HKCA 601
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