Asif Muhammad v. Director of Immigration

HCAL 2625/2025

[2026] HKCFI 510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2625 of 2025

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

Following:

Order by Deputy High Court Judge To:   

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 27 November 2025 for leave to apply for judicial review (the “2025 leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 November 2025 (the “2025 Notice”) refusing his request to make a subsequent claim (the “Request”).   

2.The Applicant is a Pakistani.  He was arrested on 3 November 2013 for being an illegal immigrant.  He claimed to have entered Hong Kong illegally on the same day.  On 8 November 2013, he lodged a claim for non-refoulement protection by written representation (the “previous claim”).  His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s decision in his Notice of Decision dated 14 December 2017 (the “2017 Notice”).  His appeal against the Director’s decisions in the 2017 Notice was dismissed by the Board’s decision dated 11 October 2018 (the “Board’s Decision”).   On 29 October 2018, he applied under HCAL 2374/2018 for leave to apply for judicial review of the Board’s Decision (the “2018 leave application”).  But on 2 September 2021, he applied by affirmation to withdraw that leave application (the “withdrawal application”).  On 10 September 2021 Deputy High Court Judge Patrick Li (“DHCJ Li”) allowed his withdrawal application.  As a result, there is no outstanding review against the Board’s Decision.  However, fifteen months later, the Applicant applied by summons dated 12 December 2022 to this Court for leave to appeal the decision of DHCJ Li out of time.  His application was refused by this Court on 13 March 2023.  His appeal against the decision of this Court was dismissed by the Court of Appeal on 2 May 2024.  His previous claim has run its full course on 4 June 2025with the Court of Appeal’s dismissal of his application for leave to appeal to the Court of Final Appeal.   However, the Applicant did not leave Hong Kong.  Just eight days later, he made the Request by letter dated 12 June 2025.  

The law

3.Under the USM, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance.  The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant.

The previous claim

4.The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, his claim was that he would be harmed or killed by his cousin Imran for marrying Imran’s former fiancée by family arrangement (Khadiya) or by supporters of the Pakistan Muslim League (Narwaz) (the PML(N)”) because he was a supporter of a rival political party, namely the Pakistan Tehreek-e-Insaf (the “PTI”).  He also claimed to have been harassed by the Pakistani police, through Imran’s cousin who was a station house officer in Gujranwala police station.  He claimed to have been intercepted randomly on the street, searched and assaulted by the police.  He claimed a false complaint of attempted sexual assault on a woman had been made against him.  But as no formal first information report had been filed, he was released after paying a bribe.  He did not seem to have relied on the harassment as a reason for fleeing Pakistan or a ground for seeking non-refoulement protection in his previous claim.  

5.The immigration officer who processed the Applicant’s previous claim found that the future risk of the Applicant being ill-treated or even killed by Imran and the PML(N) upon his return to Pakistan was not likely to materialize and there was no evidence to suggest he would be subject to any risk of proscribed harm from Imran and the PML(N).  He also found adequate state protection available and internal relocation feasible to mitigate the risks, if the risk turned real. 

6.The Board accepted the Applicant’s factual evidence and accepted that Imran had enmity towards the Applicant for marrying Khadiya. On the Applicant’s case, it was Khadiya’s family which broke off the engagement because Khadiya did not want to move to Italy with Imran; and Khadiya had died of heart attack.  As the Applicant has not been in Pakistan for a number of years, the Board did not accept that Imran would still pursue the Applicant.   The Board assessed his risk of harm from Imran to be low.  For the same reasons, it found the Applicant would not be at risk of being subjected to BOR 3 risks or Torture risks.  While accepting that the Applicant may be at risk of persecution at the hands of Imran who is a supporter of the PML(N), the Board consider the risk could be mitigated by availability of adequate state protection and the additional option of internal relocation.  It did not accept that Imran would find the Applicant wherever he went in Pakistan and was satisfied that it would not be unduly harsh for the Applicant to relocate to other cities to avoid Imran.  The Board was also satisfied that returning the Applicant to Pakistan would not expose him to a real risk of a violation of his right to life as to constitute a breach of BOR 2.  Hence, it dismissed the Applicant’s appeal.

The intended subsequent claim

7.In response to his Request, the immigration officer advised the Applicant by letter dated 20 June 2025 of the requirements for making a subsequent claim and the availability of the publicly-funded legal assistance.  At his request, the officer referred his case to the Duty Lawyer Service (“DLS”).  But, the DLS declined to represent him.  The Applicant was advised of his right to seek private legal representation if he saw fit to do so and was reminded to submit further evidence, if any, on or before 23 July 2025.  On that day, he submitted some further information and some photographs in support of his Request (“Letter 2”).  The thrust of the Applicant’s intended subsequent claim is that he will be killed by Imran; and arrested and tortured by the Pakistani police, if returned to Pakistan. 

8.The Applicant’s intended subsequent claim is also based on Imran’s enmity against him for his marrying Imran’s former fiancée.  In Letter 1, he relied on the following changes of circumstances in support of his Request.  After Imran was released from prison, he broke into the Applicant’s family house with three unknown persons on 4 April 2025.  He fired at the Applicant’s family members, saying that he will kill the Applicant if he returned from Hong Kong (the “first shooting incident”).  The Applicant’s cousin, Kashif was shot and injured.  The Applicant also asserted that, if returned to Pakistan, he will definitely be arrested and on the first hand be subjected to torture by the police for the purpose of securing a confession.

9.In Letter 2, the Applicant added that after Kashif was taken to the hospital, Imran returned with some unknown people.  Imran shot one of his companions on the leg to fabricate evidence that the shooting was initiated by Kashif.  Kashif’s nephew opened fire killing one of Imran’s underlings on the spot (the “second shooting incident”).  Imran and his people are now looking for Kashif for revenge.  He said his life would be in greater danger now with the killing of Imran’s underling.  He also claimed that he would be at risk of being killed by the Punjabi police who are killing all small criminals by pretending that they were killed in police encounter.

10.The Applicant produced three pages of photocopies of five photographs showing that Kashif was injured during the shooting incident on 4 April 2025.  He produced three pages of photocopies of a photograph of PTI’s barrister, Sultan Mehmood, elected AJK president; his photograph with Sultan Mehmood; and a photograph of himself wearing a PTI hat.

The immigration officer’s decision in the 2025 Notice

11.The immigration officer summarized the Applicant’s intended subsequent claim in paragraphs 9 and 10 of the 2025 Notice.  He examined the documentary evidence submitted by the Applicant, which are photocopies of various photographs depicting the injuries suffered by Kashif during the first shooting incident and evidencing the Applicant’s relationship with the elected president of AJK and his support of PTI.  He noted the Applicant’s intention to submit other photographs, video, newspaper and police report which had not been included in Letter 2 submitted on 23 July 2025.

12.The immigration officer accepted the two shooting incidents took place on 4 April 2025 as the Applicant asserted.  He noted that incidents happened while the Applicant was in Hong Kong, ie these are new factual circumstances which occurred since the previous claim was determined.  In paragraph 13 of the 2025 Notice, he found even accepting Kashif was shot and injured during the first shooting incident, the Applicant’s fear of being ill-treated or even killed by Imran all along remains unchanged and does not constitute a significant change of circumstances since the previous claim was finally determined.

13.As for his new fear of being arrested and tortured by the police upon his return to Pakistan, the immigration officer found it was the Applicant’s mere speculation unsupported by any credible basis.  In his previous claim, the Applicant claimed he had been harassed by Imran’s cousin who was a station house officer.  He advanced no evidence that that harassment had escalated to a life threatening risk.  He did not even mention why and for what offence he would be arrested by the police.  The immigration officer noted that Kashif’s nephew had killed one of Imran’s underlings and that Kashif and his nephew are now hiding in secret places.  That killing had nothing to do with the Applicant who was in Hong Kong at the material time.  There was no reason why the Pakistani police would want to arrest him and force a confession out of him.

14.The Applicant mentioned the Applicant’s complaint about lawlessness, defects in the judicial system, corruption in the police and extra-judicial killing in Pakistan.  These country conditions had been considered in the previous claim both by the Board and the immigration officer in the previous claim.  The Board accepted the Applicant’s concern was not that state protection would not be adequate but would not be available in time.  However, the Board found that he could resort to internal relocation, if necessary.  The immigration officer found there was nothing to suggest there was any significant change in the country condition in Pakistan to constitute change of circumstance.

15.For all these reasons, the immigration officer was not satisfied that the Applicant’s intended subsequent claim met the requirements under section 37ZO of the Immigration Ordinance and hence issued the 2025 Notice on behalf of the Director to refuse his Request.

The legal principles applicable to judicial review

16.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

17.The Applicant did not advance any grounds for judicial review in his Form 86.   After the above legal principles were explained to him, he submitted that he had video recording to support his claim about the shooting incident.  He said he had video link in his mobile phone which shows his cousin was shot, hospitalized and treated, but the immigration officer refused to accept his video recording and investigate his evidence.  His submission may provide the factual basis for review on error of law, procedural unfairness and irrationality grounds.

18.However, the Court has grave doubts about the veracity of the Applicant’s submission.  His allegations against the immigration officer are contrary to what appears to be the standard practice in handling of requests by the Immigration Department as outlined in paragraph 7 above or paragraph 5 of the 2025 Notice.  The crucial procedures are that the an applicant would be informed (1) of a deadline by which to submit his further information in support of the Request; (2) that if he could not meet the deadline, he may ask for extension of time to submit the information in writing specifying the nature of the evidence/supporting documents and their relevancy; and (3) if the immigration officer do not hear from the applicant on or before the deadline, his Request would be assessed based on all available information.  The immigration officer followed the standard practice but appeared to have omitted informing the Applicant that he may ask for extension of time to submit information, though he mentioned the rest of item (2) above.  This may be a careless omission on the part of the immigration officer or that he had in mind to grant the extension, if the Applicant would informed him the nature and relevancy of the information which he wished to adduce but was not readily available.  For reasons as explained below, even if this was an omission, it is immaterial.

19.The Applicant’s submission does not sit well with the undisputed fact set out in paragraph 7 above.  The immigration officer noted in paragraphs 9(a) and 10(d) of the 2025 Notice that the Applicant had video, more photographs, police report and newspaper which he wished to submit.  He noted in particular that the Applicant had said he could not produce the police report.  He did not expressly grant extension of time for the Applicant to do so.   He proceeded to assess the Applicant’s Request on the basis of all information available.  However, he never refused to accept the video or whatever documents which the Applicant intended to produce as alleged by the Applicant.  There was no interview or hearing which could have provided the occasion for the Applicant to produce such video or documents and for the immigration officer to refuse to accept the same from the Applicant.   The circumstances suggest there never was any refusal by the immigration officer to accept and consider other evidence to be submitted by the Applicant.

20.Furthermore, what is most important is that the immigration officer assessed the Request on the basis of all the material provided by the Applicant plus the allegations contained in the video and other documents.  He accepted that the two shooting incidents took place on 4 April 2025 in which Kashif was injured and Kashif’s nephew shot and killed one of Imran’s underlings.  He accepted Imran threatened to kill him if he returned to Pakistan.  He accepted all these facts without actual proof, but solely on the basis of the Applicant’s words.  There was no reason for the immigration officer to delay the determination by granting the Applicant extension of time to produce the video and other documents as evidence of some facts which he was prepared to accept.  In this light, the immigration officer omission to inform the Applicant about his right to ask for extension of time was a choice of expediency with benefit to the Applicant.  There was never any refusal by the immigration officer to accept additional information or evidence from the Applicant.  There is no substance in the Applicant’s complaint.

21.As there are no other grounds of application, the Court proceeded to examine the 2025 Notice for error of law, procedural unfairness and irrationality.

Overall scrutiny

22.Having considered the Request, the Director’s 2017 Notice and the Board’s Decisions in the previous claim and having rigorously examined the 2025 Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence.  On the evidence as presented by the Applicant, it was open to the immigration officer to come to the conclusion that there was no significant change of circumstances since the previous claim was finally determined and that the change, when taken together with the materials previously submitted in support of the previous claim would give the intended subsequent claim a realistic prospect of success.  The officer gave full reasons for his finding.   This is a finding of fact solely for the decision maker, which the Court in an application for judicial review may not interfere. 

23.The immigration officer observed a very high standard of fairness.  He advised the Applicant on the law and procedure in prosecuting his Request and advised him of his right to legal representation and the availability of publicly funded legal assistance.  However, the DLS declined to represent him.  The Applicant could have no valid complaint about procedural unfairness in the immigration officer’s processing of his Request.

24.This Court could detect no error of law in the 2025 Notice.  The 2025 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. 

Conclusion

25.For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2025 Notice of Decision is refused.

Dated the 27^th day of January 2026

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