Raza Ahmed v. Director of Immigration

HCAL 2448/2020

[2025] HKCFI 5414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2448 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1.   The stay under section 15(4) of the Legal Aid Ordinance (Cap. 91) be uplifted forthwith.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 15 December 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Director of Immigration (the “Director”) dated 26 November 2020 (the “Director’s Decision”).

2.Under the Director’s Decision, the Director refused to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director on 13 April 2017 (the “Director’s Earlier Decision”) and by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) on 25 August 2017 (the “Board’s Decision”).

3.The Applicant had applied for leave to apply for judicial review against the Board’s Decision but the application was dismissed by this Court ([2018] HKCFI 1067).  The Applicant’s subsequent appeal to the Court of Appeal was dismissed ([2018] HKCA 629), and his application to appeal to the Court of Final Appeal was also refused ([2018] HKCA 938).

4.The Applicant requested an oral hearing for the application.  The hearing took place on 9 September 2025 (the “Hearing”) and the Applicant attended in person. 

5.Shortly before the hearing, on 4 September 2025, the Applicant wrote to the Court and informed the Court that he had applied for legal aid in relation to the Leave Application on 2 September 2025.  A Memorandum of Notification of an Application for Legal Aid was filed on 3 September 2025.

6.At the Hearing, I asked the Applicant why he only applied for legal aid on 2 September 2025 when the Leave Application was filed almost 5 years ago on 15 December 2020.  The Applicant said that he did not know the procedure before.  I have no hesitation in rejecting such explanation.  I note that in the previous case when the Applicant applied for leave to apply for judicial review against the Board’s Decision, the Applicant had also delayed in applying for legal aid.  I set out below the judgment of Deputy High Court Judge Josiah Lam in  [2018] HKCFI 1067, at §§38-39:-

“38. In court, the Applicant first applied for adjournment. He said he applied for legal aid on 15 January 2018 but was refused on 23 March 2018. He then appealed against the legal aid refusal order on 3 April 2018. The appeal would be heard on 8 June 2018. The Applicant asked this court to adjourn the current hearing for leave for judicial review to after his appeal on the legal aid refusal. He said he wanted legal representation.

39. The Adjudicator refused the Applicant’s appeal as early as 25 August 2017. The Applicant only applied for legal aid almost five months later in mid-January 2018. He offered no reason as to why he did not apply for legal aid soon after the Adjudicator’s decision in late August 2017. The Applicant was to be responsible for the delay. Even though the legal aid refusal appeal would be heard in less than a month’s time, I see no reason why the current application for leave for judicial review should be adjourned for that. There is no indication that the Applicant would have a reasonable chance to win that appeal in June coming and then be assured of legal representation. I thus refuse the Applicant's asking for adjournment.”

7.In the light of the decision in [2018] HKCFI 1067, the Applicant ought to be aware that he should apply for legal aid as soon as possible after receipt of the Director’s Decision.  There is no explanation for the significant delay.  The Applicant’s explanation that he did not know the procedure is plainly disingenuous, given that he had applied for legal aid before (see also [2018] HKCA 629, at §14).  The Applicant is clearly employing a delaying tactics.  Further, as will be illustrated below, I fail to see any merits in the intended judicial review.  In the premises, notwithstanding section 15(4) of the Legal Aid Ordinance (Cap. 91), I consider it appropriate that the stay be uplifted forthwith to avoid further delay of the proceedings.

8.At the Hearing, the Applicant was specifically asked what he wanted to say in respect of the Leave Application.  The Applicant said he was under threat for 31 years.  His mother passed away on 9 February 2025 and he has no other relatives in Pakistan.  He further stated that his mother asked him not to go back because his life would be in danger.  He said he had already submitted all documents to the Director, and he was not able to obtain further documents because no one in Pakistan could help him.         

Discussion

9.Section 37ZO of the Immigration Ordinance (Cap. 115) provides limitation on making a subsequent claim 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.”

10.The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision maker is the Director.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Director due to the seriousness of the issue at hand, the Court should not usurp the role of the Director.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Director.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

11.The Applicant did not provide any grounds in support of the Leave Application in the Form.  In the supporting Affirmation, the Applicant made a number of allegations which can be summarized as follows:-

(1)  The Applicant contended that the Director had made a serious mistake in §9(d) on page 4 of the Director’s Decision where it was stated that “Basing on objective country of origin information, the Indian government had put measures in place to reform…”.  The Applicant is a Pakistani national and he has never been to India. 

(2)  The Applicant contended that the Director had reached the decision wrongly and the Director’s Decision is unreasonable and unfair (as required by the Wednesbury test).  The Applicant claimed that his right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.  He further claimed that his right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings. 

(3)  The Applicant contended that the Director had failed to give him sufficient time and chance to arrange relevant evidence to the subsequent non-refoulement claim as the prevailing pandemic situation around the world and especially in Pakistan.

(4)  The Applicant contended that the Director had failed to appreciate or give the proper importance or weight-age to the presence of state acquiescence in his case.  The Applicant said this had led to an unfair outcome of his case.  The Applicant claimed that he was tortured at the behest of the state law enforcement agencies as well as those in the high ups of the political circles.  The Applicant submitted that the state should be rendered liable to the Applicant for the acts of the state and its public officials for failing to provide reasonable protection for its citizens under the duty of due diligence.

(5)  The Applicant contended that the Director had failed to take into account or give enough weight to the Applicant’s argument.

(6)  The Applicant claimed that it was impossible for him to hide anywhere in Pakistan.

(7)  The Director showed an unfair attitude towards the Applicant or the Applicant’s claims.  There was corruption and incompetence of the administration in the Applicant’s country.  Various human rights organizations had complied reports on the matter which support the Applicant’s assertions.

(8)  The Director had failed to attain the high standard of fairness required by the Wednesbury test.  As such, the Director’s Decision is unreasonable.

12.I have considered the Director’s Decision in detail.  I do not consider any of the Applicant’s above contentions meritorious.  In respect of Point (1), the reference to “India” was clearly a typo when considering the context of the paragraph.  In §9 of the Director’s Decision, the Director was referring to the findings previously made by the Director and the Board.  Footnote 4 in §9(d) referred to §§22-24 of the Director’s Earlier Decision.  §§22-24 of the Director’s Earlier Decision talked about the situation in Pakistan based on the COI materials.  Thus, the reference to India in the Director’s Decision must be a typo.  When considering the Director’s Decision as a whole, it is clear that the Director was actually referring to the parts of the Director’s Earlier Decision addressing the situation in Pakistan.  I do not consider such mistake (or typo) affected the validity of the Director’s Decision. 

13.In relation to point (2), the Applicant’s contention is nothing but a bare assertion.  He has not explained how the Director had erred in the decision.  There is no evidence to suggest that the Director had applied the wrong legal principles.  The Director’s Decision was based on the findings that there was no significant change of circumstances and that the new evidence submitted did not give the Applicant’s intended subsequent claim a realistic prospect of success.  I do not see any error committed by the Director in this regard.

14.Point (3) is plainly unmeritorious.  The Applicant was given sufficient time to provide further information and evidence.  He was also assisted by Duty Lawyer Service (see §§5-6 of the Director’s Decision).  The Applicant has failed to identify the precise evidence he wanted to submit.  It should be noted that despite the lapse of almost 5 years, the Applicant still has not adduced or applied to adduce the further evidence he alleged he wanted to submit.  At the Hearing, the Applicant also confirmed that all the evidence has been submitted and he would not be able to obtain further evidence from Pakistan.

15.In relation to Point (4), the Applicant’s case has nothing to do with public officials or state acquiescence.  In fact, there is no evidence showing that the state or the public officers were involved.  Accordingly, this ground has no relevance in the context of the case.

16.In respect of point (5) above, the Applicant has failed to identify precisely what argument(s) he had advanced which the Director had allegedly overlooked or failed to give sufficient weight. 

17.In respect of Point (6) above, the Board had already considered the question of relocation in the Board’s Decision (§§30-40).  There is no evidence showing any change of circumstances which justify the reconsideration of the matter.  The Director had duly considered the alleged new circumstances relied on by the Applicant and came to the view that there was no significant change of circumstances.  The Director was entitled to come to that finding and I do not see any error committed by the Director in this regard.

18.In relation to point (7) above, the Applicant has completely failed to demonstrate how the Director had allegedly demonstrated an unfair attitude towards him.  There is no evidence suggesting that there has been change of circumstances relating to corruption and incompetence of the administration in Pakistan after the Director’s Earlier Decision or the Board’s Decision.  The Applicant has also failed to explain the relevance of this point in the light of the Board’s findings in the Board’s Decision.

19.Point (8) above is a general assertion without particulars in support. The Applicant has failed to show how the Director had allegedly failed to attain the high standard of fairness or that the Director’s Decision was unreasonable.

20.Having carefully considered the Director’s Decision, I do not find any error of law, procedural unfairness or irrationality.  There is nothing to indicate that the Director had failed to take into account any relevant matters.  The Director was entitled to come to the conclusion based on the reasons given.  The Director’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is no basis to say that the Director had failed to assess the Applicant’s claims properly.  I should add that the alleged “new” events relied upon by the Applicant lack sufficient particulars or were mostly based on hearsay.  There is no reliable evidence suggesting that the subsequent claim of the Applicant has any realistic prospect of success.

21.I also do not consider what the Applicant had said at the Hearing relevant to or assist the Leave Application.

22.In the premises, I am not satisfied that the Applicant’s intended challenge of the Director’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

23.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

24.In the premises, I make an order that the Leave Application be dismissed.

Dated the 12^th day of November 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