Shahzad Khurram v. Director of Immigration

HCAL 1094/2025

[2025] HKCFI 3678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1094 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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent.

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 6 May 2025 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds.

2.The Applicant is a 40-year-old national of Pakistan who entered Hong Kong illegally on 22 December 2015 and was arrested by police on 23 December 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim 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 Pakistan Tehreek-e-Insaf (“PTI”) and due to the election dispute between them.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 29 December 2017 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his 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 decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by those local PML(N) supporters upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to specifically target him given that he was just an ordinary PTI supporter without any official post in the party, that in any event 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 of 204 million people spread across a vast territory of more than 796,000 square kilometers 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 Lahore or Islamabad where it would be difficult if not impossible for anyone to locate him.

5.The Applicant’s appeal against the Director’s decision was dismissed by the Board on 25 March 2019 after hearing him in evidence and submissions and upon finding no merits in his claim or appeal, and that it also confirmed the Director’s decision.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 19 January 2023 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 881/2019 [2023] HKCFI 202).

7.The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 12 May 2023 (CACV 24/2023 [2023] HKCA 595).

8.The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decisions was also dismissed by the Court of Appeal on 11 July 2023 ([2023] HKCA 828), and then by the Appeal Committee of the Court of Final Appeal on 27 September 2024 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.However, even before the decision of the Court of Final Appeal, the Applicant on 7 August 2024 in writing to the Immigration Department requested to make a subsequent claim on the basis that in addition to still fearing threats from those PML(N) supporters in his previous claim, he also fears of being harmed or discriminated against or persecuted by the Muslim community and the Pakistani authorities due to his sexual orientation and being HIV positive, and of not being able to access or receive proper medical treatments for his HIV condition upon his refoulement 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”) including a full statement for his intended subsequent claim and a list of relevant COI materials and medical evidence of his HIV infection in support of his request, as well as his answers to various questions raised by the immigration officer over his intended subsequent claim.

The Director’s Decision to Refuse the Request

12.By a Notice of Decision dated 6 May 2025 Director refused to allow the Applicant to make a subsequent claim upon finding that the basis of his claimed fear of harm from PML(N) supporters was the same as that of his previous claim, while his intended subsequent claim based on his sexual orientation was never raised in his previous claim and only until now which undermined its credibility that such claim was not accepted as credible and/or that he had failed to provide sufficient evidence in writing to satisfy an immigration officer that it would amount to a significant change of circumstances since the determination of his previous claim so as to justify allowing his request to make a subsequent claim, and as for his claim based on his HIV medical condition, the Director acknowledged that the Applicant is indeed living with HIV but relevant COI show that there are organizations and government programs to provide medical treatment for HIV patients in Pakistan that the Applicant can access to receive his treatments for free upon his return to his refoulement, that his assertions of fear of facing discriminations due to his condition is primarily speculative and based on his own assumptions rather than any real or personal experience, and while it is acknowledged that discrimination may exist in the Pakistani society on an individual basis but there is no evidence to support the Applicant’s claim that he would be subjected to systematic discrimination at a level amounting to persecution that the Director concluded that the Applicant had failed to provide sufficient evidence to show that his HIV condition when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

Application for Judicial Review of Director’s Decision

13.On 12 May 2025 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 in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he subsequently attend the scheduled hearing of his application without any explanation.

14.Nevertheless, given the serious implication of the Director’s refusal of the Applicant’s request thereby denying him of having his intended subsequent claim to be properly screened and determined under the USM notwithstanding the fact that having accepted that the Applicant has indeed contracted the HIV virus and is living with the HIV condition and receiving regular medical treatments and medications from a local hospital in Hong Kong, and that such HIV infection is commonly known to have a clear correlation with male-to-male sexual contact with high risk of such infection among gay and bisexual men, but somehow proceeded to disbelieve and reject his claim based on his sexual orientation and therefore refused his request to make his subsequent claim, high standards of fairness require that the Director’s reasons for refusing the Applicant’s Request be scrutinized and examined by the Court for any error of law or irrationality or procedural unfairness in his process before the Director or in the decision.

Analysis and Discussions

15.Given that the credibility of the Applicant’s claim based on his sexual orientation was raised in issue by the Director, it would be relevant to first refer to the supporting evidence put forward by the Applicant as recorded in the decision as follows:

“10. In the Statement, you claimed, amongst others, that:

(a) The first reason you cannot return to Pakistan is political reason …

(b) The second reason is sexual orientation reason. You claimed that you are bisexual. You engage in same-sex sexual activities and this will make you very vulnerable and isolated in Pakistan. You will be subjected to discrimination and even threats and attacks because of your sexual orientation;

(c) The third is that in 2018, you were diagnosed with HIV. You are HIV positive and receiving treatment in Hong Kong. You contracted the virus in Hong Kong. You fear of returning to Pakistan because of your said medical condition. You claimed being HIV positive will have a serious impact on you if you returned to Pakistan. You would not receive adequate treatment. You claimed the social stigma and isolation against HIV positive people are serious in Pakistan. You will even face threats and attacks because of your medical condition;

(d) You have remained in Hong Kong since the refusal of your non-refoulement claim on 29 December 2017;

(e) As to your first reason above (political reason), you are still a supporter of PTI …

(f) Ghulam Shabbir (“Ghulam”), your childhood friend, has informed you that the situation in Pakistan has not improved …

(g) Between 2017 and 2024, you had regular conversations with your father and Ghulam from time to time. They informed you that people of the PML(N) are still looking for you;

(h) You contracted HIV virus in around 2018. You do not have the financial means to purchase medicine for your illness in Pakistan. You are aware that Pakistan has a strong conservative culture. HIV is a taboo. People would discriminate against you;

(i) As to your sexual orientation, you now know that you are bisexual. When you were in Pakistan at about the age of 15-16 years old, you realized that besides females you also have an affection for males. However, you suppressed yourself when you were in Pakistan because of the strict environment and conservative culture. You did not engage in any same-sex relationships or sexual activities while you were in Pakistan. Even your family does not know about your sexual orientation. If you informed your family about your HIV virus and your sexual orientation, they would have a negative reaction towards you, and they would not allow you to live with them. After you came to Hong Kong in December 2015, you slowly realized the freedom of people in Hong Kong and gradually let yourself experience same-sex relationships and have male partners in Hong Kong. You have sexual relationships with both males and females, but mostly with males. In 2018, you were diagnosed with being HIV positive, and most likely, you contracted the virus through sexual activities. You also contracted sexually transmitted diseases as a result. You are in great fear of returning to Pakistan given your sexual orientation and medical illness. Your family and the people in Pakistan will not accept you, and you will be subject to discrimination, threats, and even attacks for these reasons. Thus, in addition to political reason, you claimed that your medical condition and sexual orientation are important factors that prevent you from returning to Pakistan;

(j) You did not mention this in your previous representations to the ImmD (including your written signification) since you did not realize until recently that your sexual orientation is a relevant factor and possible ground for consideration by the ImmD;

(k) You have attached the medical documents regarding your medical status; and

(l) You wish to submit police reports filed against you in Pakistan. You will try to obtain them within 3 weeks. It is difficult for you to obtain them because these documents are in Pakistan, and the relevant police station is quite far from your village in Pakistan. Since it has been a long time, the Police may not be able to retrieve them. You have also attached COI materials regarding the political situations in Pakistan and problems in Pakistan faced by people who are HIV positive and the different sexual orientations that are relevant to you.”

16.From the above it is clear that the factual basis of the Applicant’s alleged political risk is essentially the same as his previous claim and hence the Director was in my view certainly entitled to reject it and refused the Applicant’s request to raise it again as a subsequent claim, but as regard his claim of risks due to his sexual orientation and his HIV positive situation said to have been caused by contracting the virus from his sexual activities with other man in Hong Kong, somehow the Director did not consider them to be correlated or the consequence of one leading to the other, and instead in isolation of each other rejected the Applicant’s sexual-orientation claim as not credible essentially because he did not raise it in his previous claim when he had had the opportunity to do so, as the Director stated in the decision as follows:

“16. In addition to the grounds raised in your previous claim, you also mentioned that you might be discriminated, threatened, harmed or even killed because of your sexual orientation. You claimed that you realized you were bisexual at the age of 15 or 15 (i.e. around 2000 – 2001). You further stated that you had your first sexual relationship with a male in Hong Kong at the end of 2017 or early 2018.

17. As stated in paragraph 6, a person who has previously made a non-refoulement claim must not subsequently make another non-refoulement claim. To succeed in your current Request, you must provide sufficient evidence in writing to satisfy the ImmD that there has been a significant change of circumstances since the previous claim was finally determined. Your “new ground” on sexual orientation is based on incidents that occurred between 2000 and 2018, all of which took place prior to the final determination of your previous claim (25 March 2019). It is therefore literally not a “significant change of circumstances since the previous claim was finally determined.

18. For the sake of completeness, even if we leave aside the timeline issue, as discussed below, your credibility on this ground remains in serious doubt.

19. Regarding your sexual orientation, you did not raise this issue in your previous claim. In your Statement, you explained that you did not realise your sexual orientation could be a relevant factor or a possible ground for consideration. However, this explanation is contractor to your assertions that “I understand that a male having sex with another male is a crime in Pakistan” (A14 in paragraph 13) and “this will make me very vulnerable and isolated” (paragraph 1 of the Statement). Despite allegedly fearing harm due to your sexual orientation, you chose to delay raising this issue until September 2024 (around 5.5 years after the final determination of your previous claim). It is considered implausible that you would conceal a matter you claim to be life-threatening if you have identified as bisexual since 2000-2001. Furthermore, it is surprising that in the Request, where you “finally” had the opportunity to elaborate on your “new” fear, you merely stated that you wished to “apply subsequent claim” and only repeated the “old grounds”. Your failure to disclose your “new” fear in a timely manner or at the earliest opportunity leads to doubts that damage the credibility of your claim. Not to mention you had been repeatedly reminded to put forth all relevant details related to your claim in the processing of your previous claim. Consequently, your sudden assertion that you cannot be refouled due to your sexual orientation is unconvincing. The above undermines the credibility of your claim on the “new ground”. Your current claim relied on your sexual orientation is not accepted. As such, you have failed to provide sufficient evidence to justify that your Request should be allowed on this ground.”

17.As noted above, the Applicant did provide his explanations as to why he did not raise the basis of his sexual orientation earlier in his previous claim in that he was able to suppress his homosexual desire while in Pakistan due to the predominantly Muslim culture, that he only engaged in same-sex activities with other men after arriving in Hong Kong without informing his family in Pakistan, and that it was only in July 2018 when he was diagnosed with HIV infection which was almost 3 years after he first raised his previous claim based on political reason to the Director in 2015, and some 7 months after the Director’s decision which rejected his previous claim that led him to become aware of the new risks that he would be exposed to if refouled to Pakistan when he would have to seek regular medical treatments and medication for his HIV condition that his sexual orientation would be discovered by his family and friends as well as the Muslim community in general in Pakistan (see the Applicant’s answers A10 – A16 in [13] of Director’s decision).

18.As such, if the Director were still to take issue with the credibility of this claim of the Applicant, procedural fairness would require the immigration officer to raise it with the Applicant in a screening interview to enable him to explain clarify or respond to whatever questions that the Director might have over his claimed basis of sexual orientation, and after having assessed all the evidence from the Applicant, high standards of fairness would also require the immigration officer to consider whether to give the Applicant the benefit of the doubt given the fact that there is no issue over him being HIV positive as supported by medical evidence (see [11] of Director’s decision), and given the commonly known and accepted correlation between homosexual activities amongst men with higher risk of HIV infection, it seems to me reasonably arguable that the Director had erred in law and/or that his decision is Wednesbury unreasonable or irrational in rejecting the credibility of the Applicant’s claim based on his sexual orientation essentially because it was never raised in his previous claim.

19.It follows that in rejecting the credibility of such claim of the Applicant that the Director did not proceed to make any assessment of his claimed fear of risk of harm or persecution by the Muslim community given its conservative culture or from the Pakistani authorities when it is the Applicant’s claim that sexual activities between males is a crime in Pakistan (see A14 in [13] of Director’s decision), high standards of fairness nevertheless in my view require the Director to proceed to consider the relevant COI so as to properly assess and determine such risks as claimed by the Applicant, and while the limitations imposed on making subsequent claims under Section 37ZO are obviously necessary to filter out unmeritorious requests, once an applicant has been able to establish prima face a significant change of circumstances since his previous claim had been determined, as the Applicant in the present case appeared to have done so, high standards of fairness would also require the immigration officer to consider allowing his request in the circumstances so that his intended subsequent claim based on such risks could be appropriately screened and determined under the 2-tier system of the USM: see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at 206.

20.Furthermore, while the Director did make references to relevant COI as to the medical services and treatments available to HIV positive patients in Pakistan (see [21] – [22] of the Director’s decision), albeit only of those provided by the Applicant and not from the Director’s own inquiries, the fact is that since the Applicant’s diagnosis of HIV some 7 years ago in 2018, it is not clear at all of his current or latest situation with the disease other than his receiving regular medical treatments and medications at a local hospital in Hong Kong, and while it is the Applicant’s duty to establish his current medical condition if it is part of his case that it has any bearing or impact on his intended subsequent claims, high standards of fairness stipulate that it would also be necessary or appropriate for the Director or the immigration officer to require the Applicant to provide a medical report on the latest situation as to his HIV infection, and if necessary for the Director to seek and obtain such information from the relevant medical authority before proceeding to determine the Applicant’s claimed fear of being deprived of the necessary medical treatments for his HIV condition upon his refoulement to Pakistan, as the exercise of determining whether a claim of an applicant is valid is one of “joint endeavor”: see Prabakar, supra at para 54; TK v Jenkins [2013] 1 HKC 526, paras 21, 24 and 25.

Conclusion and Disposition

21.In the premises, and for all these reasons I am of the view that the Applicant’s intended application for judicial review of the Director’s decision is reasonably arguable on the grounds that the Director (1) erred in law in refusing the Applicant’s request to make a subsequent claim based on his sexual orientation as not credible and/or that the decision was Wednesbury unreasonable or irrational essentially on the basis that it was not raised in his previous claim; (2) failed to conduct any or proper inquiry and assessment including relevant COI as to the Applicant’s claimed risks of harm/discrimination/persecution by the Muslim community and/or the Pakistani authorities due to his homosexuality/bisexuality/HIV positive situation; and (3) failed to ascertain the Applicant’s latest HIV situation and medical treatments before arriving at the conclusion that proper medical services and attentions would be available to the Applicant for his such treatments upon his return to Pakistan, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

22.Accordingly I grant leave to the Applicant to apply for judicial review of the Director’s decision as regard his subsequent claims limited to those based on his sexual orientation and the unavailability of medical treatments for his HIV infection in Pakistan based on the grounds stated above, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Director as the respondent, and given the Applicant’s absence for the hearing of his application without any explanation, he is hereby warned that if he fails to comply with these directions, he runs the risk of having his application being struck off by the Director.

Dated the 26^th day of August 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