Mohammed Afsar Ali v. Director of Immigration
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HCAL 1640/2025 [2025] HKCFI 4056 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1640 OF 2025
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge K.W. Lung:
Observations for the Applicant: THE APPLICATION 1.This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 12 March 2025 (“the Director’s Decision”) refusing his subsequent claim on the applicable risks[1], which had been determined in his previous application under HCAL 1809 of 2018 (“the previous claim”). 2.The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process. 3.The applicant appeared before the Court on 27 August 2025 and admitted that he had made judicial review in respect of the Board’s Decision in the previous claim and this is the second application. His enemies are the same. The procedural history 4.The applicant is a national of India. He is an illegal immigration by overstaying in Hong Kong. He lodged a non-refoulement claim with the Director of Immigration (“the Director”). 5.The Director dismissed his claim for the reason that it was not substantiated. He appealed to Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board rejected his evidence and found that his claim was unfounded. It dismissed his appeal. 6.His application for leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance on 3 September 2018. 7.He applied for extension of time to appeal to the Court of Appeal. The Court of First Instance dismissed his application. He applied to the Court of Appeal for extension of time to appeal. The Court of Appeal dismissed his application, 8.He file a Notice of Motion for leave to appeal to the Court of Final Appeal. The Court of Appeal dismissed his application. 9.He applied for leave to appeal at the Court of Final Appeal, which dismissed his application on 16 January 2024. 10.By letter dated 12 March 2025, the applicant applied to the Director for making a subsequent claim for non-refoulement protection. By the Director’s Decision, the Director refused his application. The subsequent claim application 11.Under section 37ZO of the Ordinance, he has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success. 12.Despite the immigration officer’s advice, he did not submit any additional material in support of his application. 13.The immigration officer considered his evidence and found that the applicant relied on the similar reasons in his previous claim. His claim was therefore treated as a continuation of his previous claim, 14.For those reasons, the immigration officer did not accept that the applicant’s subsequent claim application satisfied the conditions under section 37ZO of the Ordinance and he refused his application. Application for leave to apply for judicial review of the Director’s Decision 15.The applicant filed Form 86 on 21 July 2025 for judicial review of the Director’s Decision. 16.In the affirmation in support of his application, the applicant stated that the political environment in India is different as the ruling party does not support Muslims. If he returns to India, he will be harmed or killed by his brother-in-law, who opposed his marriage. They are powerful people. He had applied for habeas corpus. But the Immigration Department did not release him to obtain documents in support of his claim. Discussion 17.The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact-finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1). 18.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that his enemies were the same enemies, but he said that he had applied for habeas corpus for his release. This procedural issue does not assist his application. 19.As to the grounds under paragraph 16, they had been considered by the Board. The immigration officer said in the Director’s Decision that the applicant did not produce any additional materials in support of his application. It is for this reason that the immigration officer did not accept his subsequent claim application. As mentioned above, his application for bail or for release by way of habeas corpus does not constitute any significant change of circumstances under section 37ZO of the Ordinance. 20.The applicant fails to show that he has any realistic chance of success in his intended judicial review of the Director’s Decision. 21.I dismiss his application for leave to apply for judicial review of the Director’s Decision. The RPO 22.Because of the applicant’s attempt to abuse the process, the Court has to protect its process to be abused again. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against him. See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1. 23.RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Direcctor of Immigration [2021] HKCFI 1991, by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021, § 9 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129, § 25. 24.For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against him. The RPO was explained to the applicant before the hearing. When asked whether he had anything to say about the proposed RPO, he asked this Court to rule in his favour. 25.I am therefore satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong only. I shall therefore make the RPO in terms below:
DISPOSITION 26.The applicant’s application is dismissed. 27.RPO in terms of paragraph 25 be made against the applicant. Dated the 16th day of September 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 [1]. The applicable risks are:
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