Mahmood Khalid and Others v. Director of Immigration

HCAL 13/2025

[2025] HKCFI 2284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 13 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 1st and 2nd Applicants in open court;

Order by Deputy High Court Judge Bruno Chan:

1.   Extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigrationdated 4 September2024be refused;

2.   The application for leave to apply for Judicial Review be dismissed; and

3.   A Restricted Proceedings Order (RPO) be made against the 1^st to 4^th Applicants.

Observations for the Applicants:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 4 September 2024 refusing to allow the Applicants, a married couple and their 2 minor children, to make a subsequent claim for non-refoulement protection after their previous respective claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

Previous Non-Refoulement Claims of A2 and A3          

2.The wife, the 2^nd Applicant (“A2”), is a 45-years old national of Indonesia from Central Java Province who last arrived in Hong Kong in 2010 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 17 September 2012 or within 14 days of its early termination, during which she met and formed a relationship with a Pakistani man, the 1^st Applicant (“A1”) who was then a non-refoulement claimant released on recognizance pending the determination of his claim, and with whom she subsequently married in Hong Kong, but when her employment was prematurely terminated in September 2011, she did not depart and instead overstayed, and upon giving birth to their son, the 3^rd Applicant (“A3”) in Hong Kong in December 2012, she raised a non-refoulement claim for both of them on the basis that if they returned to Indonesia they would be harmed or killed by her creditor over her unpaid debts, and for which they attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).    

3.By a Notice of Decision dated 20 August 2015 and a Notice of Further Decision dated 5 December 2016 the Director rejected the claims of both A2 and A3 on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

4.In his decisions the Director took into account of all the relevant circumstances of the claims of both A2 and A3 and assessed the level of risk of harm from A2’s creditor upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from A2’s creditor, that there was no reliable evidence of any real intention of A2’s creditor to seriously harm or kill either of them other than to press A2 to repay her debts, that in any event it was a private monetary dispute between A2 and her creditor only without any official involvement that state or police protection would be available to both A2 and A3 if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws in Indonesia to protect women and children reasonable internal relocation alternatives are available in Indonesia with a large population of 250 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for A2 as an able-bodied adult with working experience to move safely with A3 to other part of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for anyone to locate them.

5.The subsequent appeal of A2 and A3 against the Director’s decisions was dismissed by the Board on 18 July 2018 after hearing A2 in evidence and submissions and upon finding no merits in their claims or appeal, and that it also confirmed the Director’s decisions.

6.Their application for leave to apply for judicial review of the Board’s decision was also refused by Deputy High Court Judge Lung on 22 February 2022 upon finding none of the proposed grounds for their intended challenge reasonably arguable, that there was no error of law or procedural unfairness in their process before the Board or in its decision including its separate assessment of the claim of A3 as a minor without legal representation that there was no underlying potential minor-specific non-refoulement basis in his claim either in accordance with the principles laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, and that there was no prospect of success in their intended application (HCAL 2080/2018  [2022] HKCFI 377).

7.Their subsequent appeal against DHCJ Lung’s decision was dismissed by the Court of Appeal (Chow JA and ST Poon J) on 10 October 2022 (CACV 102/2022 [2022] HKCA 1273).

8.Their Notice of Motion for leave to appeal against the Court of Appeal’s decisions was also dismissed by the Court of Appeal on 15 November 2022 ([2022] HKCA 1669), and then by the Appeal Committee of the Court of Final Appeal on 25 April 2024 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Previous Non-Refoulement Claims of A1 and A4

9.Meanwhile A1 who is a 43-years old national of Pakistan and entered Hong Kong illegally on 2 June 2011 and was arrested by police on the following day when he then raised a torture claim to the Immigration Department 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 (N) (“PML(N)”) as he supported their rival All Pakistan Muslim League (“APML”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.

10.Whilst released on recognizance pending the determination of his claim, A1 met and formed a relationship with A2 and as noted above with whom he subsequently married in Hong Kong in 2014, and upon A2 giving birth to their daughter, the 4^th Applicant (“A4”) on 26 October 2015, A1 informed his family in Pakistan who however became furious as they had earlier already arranged for him to marry his cousin in Pakistan, and as a result both his family and his cousin’s family had made death threats against both A1 and his daughter, and so A1 included such additional threats into his claim and also raised a non-refoulement claim for A4 on the same bases, and with their claims to be jointly assessed, for which they attended a screening interview before an immigration officer with legal representation from DLS.   

11.By a Notice of Decision dated 22 August 2018 the Director rejected the claims of both A1 and A4 on all the applicable grounds upon assessing the level of risk of harm from those local PML(N) supporters and/or A1’s family or the family of his cousin upon their return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those local PML(N) supporters to seriously harm or kill A1 or any political reason for them to specifically target him or to still have any adverse interest in him after all these years since he left the country, that A1’s dispute with his family over the prearranged marriage was a private matter within the family only, that in either case in the absence of any official involvement that state or police protection would be available to both A1 and A4 if resorted to, and that reliable and objective COI also show that reasonable internal relocation alternatives are available within Pakistan with a large population 204 million spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move safely with A4 to other parts 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 them.

12.Their subsequent appeal to the Board against the Director’s decision was dismissed by the Board on 24 June 2022 after hearing A1’s evidence and submissions by their lawyer from DLS and upon finding no merits in their claims or appeals, and that it also confirmed the Director’s decision.

13.Their application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 25 June 2024 upon finding none of their proposed grounds for their intended challenge reasonably arguable, that there was no error of law or procedural unfairness in their process before the Board or in its decision including its assessment of A4’s claim as a minor separately from her father’s claim and having regard to her minor-specific and personal circumstances in accordance with the principles laid down by Fabio supra, and that there was no prospect of success in their intended application (HCAL 662/2022 [2024] HKCFI 1661).  

14.The subsequent appeals by A1 and A4  against the Court’s decision were also dismissed by the Court of Appeal (Au and Chow JJA) respectively on 25 November 2024 and 13 March 2025 in the absence of any viable grounds of appeal (CACV 272/2024 [2025] HKCA 204).

Joint Request To Make Subsequent Claims

15.Meanwhile on 19 January 2024 A1 in writing to the Immigration Department requested to make a subsequent claim for himself as he still fears of being harmed and killed by those local PML(N) supporters and by his family and his cousin’s family due to their dispute over the prearranged marriage upon his return to Pakistan, and subsequently also sought to include A4 in his request, while A2 also requested to make a subsequent claim for herself and A3 on the basis that they still fear of being harmed or killed by her creditor upon their return to Indonesia.         

16.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.”

17.Accordingly, the Director in writing required the Applicants to provide further information and evidence in writing in support of their respective requests within 14 days, which they subsequently did via their lawyer from DLS with additional documentary evidence and COI materials in support of their requests, and of which they agreed be dealt with together as a family.     

18.By a Notice of Decision dated 4 September 2024 the Director refused to allow the Applicants to make their subsequent claims upon finding that the bases thereof in both cases were essentially the same as that of their previous claims, and that they failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been any significant change of circumstances since their respective previous claims were determined, or that those changes when taken together with the material previously submitted in support of their previous claims would give their subsequent claims any realistic prospect of success given the unchallenged findings by both the Director and the Board in their previous claims of the availability of state protection and internal relocation options to similarly negate the same risks that may arise from their respective intended subsequent claims upon their return to their home countries.    

19.On 2 January 2025 the Applicants 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 their Form or in A1’s supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for their intended challenge.   

20.By then the Applicants were also out of time with their application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

21.As the last day of the 3-month period for them to file their Form 86 fell on 4 December 2024, the Applicants were therefore late by almost one month with their application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

22.In the Applicants’ case, a delay of almost one month must be considered as substantial and inordinate, for which they were unable to provide any explanation, but given the fact that the appeals of the previous claim of A1 and A4 were at the relevant period being dealt with by the Court of Appeal that some confusion or delay may have been caused to the filing of their second leave application for judicial review, and as the interests of minor children without legal representation are involved, I propose to focus on the prospect of success or merits in their intended application.     

23.However, as noted above that the Applicants also failed to put forward any proper ground for their intended challenge in their Form or affirmation, nor were they able to do so at the hearing of the application. As such, 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 Applicants’ request to make a subsequent claim, nor do I find any prospect of success or merits in the intended applications of any of the Applicants, I therefore refuse to extend time and accordingly dismiss their leave application.

24.I am of course mindful of the fact that both A3 and A4 are still minors at their present age of 12 and 9 respectively and were without legal representation in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, and hence it would be necessary for the Court to scrutinize and examine whether their requests to make a subsequent claim had been properly and separately considered and determined by the Director in a manner sufficiently to meet the high standards of fairness in proceedings of this nature, and to see whether there are underlying matters that may support potential minor-specific non-refoulement bases for their intended subsequent claim which the Director might have failed to properly consider in accordance with the principles laid down in Fabio supra and in Re Jasvir Singh [2021] HKCA 53, of which it is noted that A3 and A4 did have legal representation from DLS, as were their parents, in their requests to make a subsequent claim to the Director, and more significantly that it was correctly pointed out by the Director that the factual bases of their respective intended subsequent claims are primarily the same as their previous claims which have all been properly disposed of as without merits, and that the Director did also properly and separately consider the respective intended subsequent claims of both A3 and A4 as minors (see [30] – [34] of the decision), and as I am unable to find any underlying matters that may support potential minor-specific non-refoulement bases which the Director might have failed to properly consider in either of the case of A3 or A4, and as there is no merits in their intended application for judicial review, I shall therefore treat their lack of legal representation in these proceedings as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 and applied in Re Jasvir Singh supra.

Restricted Proceedings Order

25.Given the facts that the Applicants’ non-refoulement claim has already been finally and conclusively determined in the previous proceedings as noted above, ending with the respective orders of the Court of Appeal and/or the Appeal Committee of the Court of Final Appeal, but that the Applicants are still trying to re-litigate their respective cases by making these subsequent claims based on essentially the same facts and bases as before, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against all of them.

26.Section 27 of the High Court Ordinance, Cap. 4 provides as follows:

“Restriction of vexatious legal proceedings

(1)  The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that –

(a)   no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b)   any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

(2)  The Court of First Instance may not make an order under subsection (1) unless –

(a)   it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(b)   it has heard the person against whom the order is to be made or given him an opportunity of being heard.

(3)  An order made under subsection (1) –

(a)   may be made on such terms and conditions as the Court of First Instance thinks just; and

(b)   may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

…”

27.Relevantly, Section 27A also provides:

“(1) Leave for the institution or continuance of any legal proceedings by a person who is the subject of an order for the time being in force under section 2791) shall not be given unless the Court of First Instance is satisfied that –

(a) the proceedings are not an abuse of the process of the court in question; and

(b) there are reasonable grounds for the proceedings.

(2) No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.”

28.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section.  

29.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] - [10]).

30.In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] - [40]).        

31.In the present case, it is clear from the above that the Applicants’ conducts in seeking persistently to re-litigate their non-refoulement claims without viable grounds amount to an abuse of process, and that unless a RPO is made against all of them, to which neither A1 or A2 were unable to answer or raise any valid objection either for themselves or their children at the hearing, I am convinced that the Applicants would likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

32.Accordingly, I make the following order:

(1)  The Applicants be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to any non-refoulement claim of the Applicants in the High Court, or any appeal, including this Order, without the leave of a Judge 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 Applicants do notify in writing each intended defendant or respondent of their 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 Applicants from any such intended defendant or respondent, that the Applicants do file a copy of each such response together with their 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 Applicants 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 this Court or 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 Applicants 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 Applicants within any period of 3 months;

(10)  No appeal shall lie from a decision of the Judge granting or refusing leave under 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.

Disposition 

33.The Applicants’ application for leave to apply for judicial review is dismissed.

34.A RPO in terms of paragraph 32 be made against the Applicants.  

Dated the 12^th day of June 2025

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