Shan Ibrar Hussain v. Director of Immigratio

HCAL 1846/2025

[2025] HKCFI 5492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1846 of 2025

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 Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:    

1.  Leave is granted to the applicant to apply for judicial review of the Director’s Decision unless the Director agrees to allow the applicant to apply for the subsequent claim so that the applicant may appeal his decisions to the Board;

2.  The applicant shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court;

3.  A copy of this Order be served on the Department of Justice, who shall work out the proper directions for the judicial review hearing with the applicant; and

4.  Liberty to apply.

Observations for the Applicant:

1.Leave is granted to the applicant to apply for judicial review of the Director’s Decision dated 13 August 2025 in respect of the applicant’s application for a subsequent claim.  I shall briefly state my reasons below.

2.The applicant had made a previous non-refoulement claim.  See HCAL 2444 of 2018.  The Director refused his claim by Notice of Decision dated 29 June 2017.  He appealed to the Torture Claims Appeal Board (“the Board”), which dismissed his appeal on 29 October 2018 (“the Board’s Decision”).

3.The applicant applied for leave for judicial review of the Board’s Decision.  The Court of First Instance dismissed his application.  He had pursued his appeal all the way to the Court of Final Appeal, which dismissed his application for leave on 31 December 2021.

4.He was removed to Pakistan in April 2022.  Between April 2022 and August 2025, he was in Pakistan.

5.He relied on the facts in his previous claim and also the new facts when he was in Pakistan.  It is unnecessary to repeat the facts in his previous claim as the Board had already rejected them.  Briefly, his fear was because he had witnessed a political member murder another person, and this political member may kill him in order to cover up his crime.  However, he had given new facts that he will be harmed or killed by his uncle if he returns to Pakistan because of land disputes there.  The immigration officer had considered the new facts and found:

“13. Based on the adverse findings of your credibility, it is not accepted that you have provided a truthful account on this Request. It is highly probable that you just fabricated a ‘new story’ for this Request. Therefore, it is considered that there is insufficient evidence to demonstrate that there is a significant change of circumstances of your case warranting your making of a subsequent claim since your previous claim was finally determined.”

6.The Court of Appeal in Re: Moshsin Ali [2018 HKCA 549, Hon Lam VP and McWalter JA, 24 August 2018 held:

“43. It is clear that what is provided for by the Immigration Ordinance is a two tier administrative structure for the processing of torture claims. The first tier is by an immigration officer and the second tier by a member of the board who will often, if not usually, be a legally qualified person and may be a former judge or magistrate.

44. There are a number of important features of this two tier process:

(1) there is no limitation imposed on the board in carrying out its review function such as by being required to find appellate error before it can reverse the decision being reviewed;

(2) the board is independent of the Immigration Department and can receive new evidence that was not before the immigration officer;

(3) the board is presided over by a person with legal training;

(4) the unrestricted nature of the board’s review function, the powers it is given and the processes it employs provide an opportunity for a claimant to raise with the board any defect in the proceedings before the immigration officer and for the board to cure any such defect; and

(5) the board’s decision brings finality to the administrative processing of the claim by the provision of a reasoned decision.

45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing.

49. As we have said many times before, evaluation of risk of harm is primarily a matter for the director and the board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment by the board in the hope that the court may consider the matter afresh in the absence of any legal error.[1]”

7.The two-tier administrative structure refers to Section 37ZR of the Immigration Ordinance (“the Ordinance”), which provides that a person aggrieved by a decision of an immigration officer may appeal to the Appeal Board under certain sections of the Ordinance, which do not include a decision under section 37ZO for subsequent claim.

8.This is a case where finding of the new facts is crucial for its determination.  In my view, the immigration officer’s finding of the new facts should be subject to the adjudication of the Board so that the decision on the new facts is final under section 23 of Schedule 1A of the Ordinance.  Such decision, though final, is still subject to judicial review by the court.  See Re: Aioub Ali [2019] HKCA 1329. Hon Lam VP, Wong and S T Poon, 2 December 2019.

9.For this reason, I grant leave to the applicant to apply for judicial review of the Director’s Decision unless the Director agrees to allow the applicant to apply for his subsequent claim so that the applicant may appeal his decisions to the Board.

10.The applicant shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court.

11.A copy of this Order should be served on the DoJ to work out the proper directions for the judicial review hearing with the applicant.

12.Liberty to apply.

Dated the 19^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

[1] See: Re Lakhwinder Singh [2018] HKCA 246 and Re Daljit Singh [2018] HKCA 328.