SHAHID MUHAMMAD alias GUL AGHA v. DIRECTOR OF IMMIGRATION

HCAL 1464/2021

[2025] HKCFI 6350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1464 OF 2021

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 20 July 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous torture claim had been rejected by the Director without any appeal to the Torture Claims Appeal Board (“the Board”), while his non-refoulement claim under the Unified Screening Mechanism (“USM”) on the remaining applicable grounds was also withdrawn by him upon his confirmation that it was safe for him to return to his home country.

2.  The Applicant is a 50-year-old national of Pakistan who first entered Hong Kong illegally sometime in 2007 and was arrested by police on 23 October 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim under the identity of Agha Gul on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League (Q) (“PML(Q)”) as he supported their rival Pakistan Muslim League (N) (“PML(N)”).

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 30 October 2013 the Director rejected the Applicant’s torture claim of risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”) after taking into account of all the relevant circumstances of his claim and found no evidence of him ever been tortured by anyone let alone the Pakistani state or authorities, that he together with his fellow PML(N) supporters were arrested by police in the line of their duties for fighting in public without any serious consequences, that there was no reliable evidence that he had been specifically targeted by the PML(Q) supporters or any political reason for them to have any adverse interest in him, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for anyone to locate him.

4.  The Applicant never brought any appeal to the Board against the Director’s decision, and by a letter dated 14 February 2014 from the Director, he was invited to proceed with a non-refoulement claim for protection on the remaining applicable grounds upon the commencement of the USM, but 1 ½ years later on 24 August 2015 the Applicant in writing requested to withdraw his non-refoulement claim as it was safe for him to return to his home country, and by a letter dated 31 August 2015 the Director accordingly treated his non-refoulement claim as withdrawn.

5.  However, some 8 months later on 28 April 2016 the Applicant in writing requested to re-open his claim, and in pursuance of Section 37ZE (2) of the Immigration Ordinance, the Director by a letter dated 4 May 2016 required him to provide further information and evidence in writing within 14 days to satisfy an immigration officer that

(a)  since the withdrawal there had been a change of circumstances that –

(i)  could not reasonably have been foreseen by him when he gave notification to withdraw his non-refoulement claim; and

(ii)  when taken together with the material previously submitted for his claim could increase the prospect of success of his claim; or

(b)  that there were special circumstances that it would be unjust not to re-open his claim.

6.  Accordingly the Applicant replied to state that his problem in his home country had started again that his life was not safe anymore, and hence he did not want to return to Pakistan.

7.  By a Notice of Decision dated 6 June 2016, the Director refused to allow the Applicant to re-open his claim upon finding that he had failed to provide any or sufficient evidence in writing to satisfy an immigration officer that since the withdrawal of his claim that there had been a change of circumstances that could not reasonably have been foreseen by him at the time when he gave his notice to withdraw, or that when taken together with the material previously submitted by him for his claim could increase the prospect of success of the claim, nor was there any reason of special circumstances that would make it unjust not to re-open his claim.

8.  Again the Applicant never brought any appeal to the Board against the Director’s refusal to re-open his claim under Section 37ZR (a) of the Immigration Ordinance, and on 19 January 2017 he was repatriated to Pakistan.

Request To Make Subsequent Claim

9.  More than 2 years later in April 2019 the Applicant sneaked back into Hong Kong, and on 26 January 2021 he surrendered to the Immigration Department and requested to make a subsequent claim under his present identity of Shahid Muhammad on the basis that upon returning to his home village he discovered that those local PML(Q) supporters in his previous claim were still looking for him that he had to flee his home country again to come to Hong Kong to seek protection, and hence he fears of being harmed or killed by those PML(Q) supporters if refouled to Pakistan.

10.  There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(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.”

11.  Accordingly, the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”) with a statement in which he essentially repeated the same claim as noted above in [9].

12.  By a Notice of Decision dated 20 July 2021, the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given the unchallenged findings by the Director in his previous claim of the availability of state protection and internal relocation to the Applicant upon his return to Pakistan to similarly negate whatever risk that may arise from his intended subsequent claim.

13.  On 21 October 2021, the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form or supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge.

14.  Moreover, the Applicant recently on 3 November 2025 filed an affirmation requesting to “close” his application as he has since been granted a dependent visa to stay in Hong Kong but without providing any supporting evidence.

15.  In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim, nor am I satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation to “close” his application, I accordingly dismiss his leave application.

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