Rai Subas v. Director of Immigration

HCAL 345/2021

[2026] HKCFI 2097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 345 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Director of Immigration”, and the names of the putative interested parties be deleted.

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

3.  A Restricted Proceedings Order be made against the applicant in terms of the following:-

(1)   The applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the applicant in the High Court, or any appeal, including this Order, without the leave of the Court of First Instance;

(2)   All applications for leave under paragraph (1) shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List;

(3)   At least 7 days before filing any application for leave under paragraph (1), the applicant do notify in writing each intended defendant or respondent of his intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the applicant from any such intended defendant or respondent, that the applicant do file a copy of each such response together with his said application for leave;

(4)   Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the court written representations regarding the same;

(5)   All applications made pursuant to this Order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the designated Judge should otherwise direct;

(6)   If the applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed;

(7)   Notice of each decision by the designated Judge made pursuant to this Order be given in writing to the applicant and to each intended defendant or respondent named in the fresh proceedings;

(8)   Whether or not any fresh proceedings are brought to the notice of the designated Judge, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly;

(9)   No more than one leave application under paragraph (1) may be made by the applicant within any period of 3 months;

(10)   No appeal shall lie from a decision of the Judge granting or refusing leave within this Order, unless leave to appeal has been granted by the Judge;

(11)   This Order shall cease to have effect at the end of 5 years from the date of this Order; and

(12)   A copy of this Order shall be sent to the Registrar of the High Court.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 15 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the “Notice of Decision Request for Making a Subsequent Claim issued by the Immigration Department dated 4 February 2021”.

2.The Director of Immigration (“the Director”) made a decision dated 4 February 2021 (“the Director’s 2021 Decision”) refusing the applicant’s request (“the Request”) for making a subsequent claim for non-refoulement protection under the Unified Screening Mechanism (“the USM”). The Request was made by way of a letter dated 7 July 2020.

Amendments

3.In Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the 1^st putative respondent and the Director as the 2^nd putative respondent, when only the Director should be named as the putative respondent.

4.He also named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the 1^st putative interested party and Immigration Department as the 2^nd putative interested party, when the naming of a putative interested party is not required in his case.

5.Thus, on this court’s own motion, the name of the putative respondent is amended to “Director of Immigration”, and the names of the putative interested parties are deleted.

Procedural history of the applicant’s previous non-refoulement claim

6.The applicant is a male Nepalese who overstayed in Hong Kong and was arrested by police on 27 October 2013. He made his first claim for non-refoulement protection by way of a written representation on 29 October 2013.

7.The Director rejected the applicant’s non-refoulement claim on the grounds of Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the USM on 28 May 2015 (“the Director’s 2015 Decision”), and further rejected the applicant’s claim on the ground of BOR 2 Risk[4] on 20 March 2017 (“the Director’s 2017 Decision”). The Board rejected the applicant’s appeal/petition against the Director’s 2015 Decision and the Director’s 2017 Decision on 27 February 2017 (“the Board’s 1^st Decision”) and 8 November 2017 (“the Board’s 2^nd Decision”) respectively.

8.The applicant applied for leave to apply for judicial review in respect of the Board’s 2^nd Decision on 14 November 2017 (“the First Leave Application”), but the Board’s 1^st Decision was not included. The First Leave Application was refused by the Court of First Instance (“the CFI”) on 22 June 2018[5] (“the CFI’s 2018 Decision”).

9.The applicant appealed against the CFI’s 2018 Decision to the Court of Appeal and the appeal was dismissed on 13 November 2018[6].

10.On 26 November 2018, the applicant filed a notice of motion seeking leave to appeal to the Court of Final Appeal. The applicant’s notice of motion was dismissed by the Court of Appeal on 27 February 2019[7].

11.On 5 March 2019, the applicant applied for leave from the Court of Final Appeal to appeal against the decision of the Court of Appeal and the application was dismissed by the Court of Final Appeal on 19 June 2020.

The applicant’s subsequent claim

12.On 7 July 2020 (merely 19 days after the Court of Final Appeal’s dismissal as aforesaid), the applicant made the Request and continued to claim that he would be at risk of harm in Nepal. The applicant also raised his request to the Director to seek publicly-funded legal assistance.

13.On 14 December 2020, the Duty Lawyer Service (“the DLS”) wrote to inform the Director that they would represent the applicant in his application for subsequent claim. The DLS attached in their letter of 12 January 2021 with the applicant’s updated information for the Director’s consideration.

14.After consideration of the applicant’s previous non-refoulement claim including the findings of credibility and facts made by the case officer of the Immigration Department and the Board, the Request, and the additional information in support of his Request submitted by the legal representative of the applicant, the Director refused the Request by way of the Director’s 2021 Decision.

The applicant’s case

15.In his first claim for non-refoulement protection, the applicant claimed that if returned to Nepal, he would be harmed or killed by Tarzan Limbu and Bhim Limbu from the Maoists.

16.The applicant repeated the background of his previous claim in the Request. He further alleged that he would be harmed or killed by people of the Maoist Party because while in Hong Kong, he had started to support the Rastriya Janata Party, also known as Janata Samajwadi Party, Nepal (“the JS”). The JS held different ideology with the Maoist party and was currently a rival party with each other. The applicant claimed that he had received telephone calls from an unknown Nepalese male threatening him that he would be killed by the Maoists if he returned to Nepal.

Oral hearings

17.This court fixed an oral hearing of the Leave Application on 20 January 2026 and the applicant was present at the hearing.

18.At the hearing, when this court asked the applicant for the grounds of his intended judicial review, he merely said that he would rely on his written submissions made in his supporting affirmation dated 15 March 2021. He said that the reasons for his making a subsequent claim were that he was sick and was staying in hospital in Hong Kong, and he did not want to go back to Nepal. However, he agreed that there was no significant change of circumstances for his case.

19.Since the applicant was basically making the same claim again, this court explained to him that a Restricted Proceedings Order (“RPO”) might be made against him and asked if he needed time to prepare for submissions to oppose any RPO which might be made against him. The applicant confirmed that he needed time to prepare his submissions and hence the hearing was adjourned.

20.At the resumed hearing on 12 March 2026, this court asked the applicant to make his submissions concerning the proposed RPO. However, the applicant only submitted that he did not have any more case and would leave it to his lawyer. He disagreed that he was abusing the court proceedings as he had a problem and could not go back to Nepal. He then asked this court if he could still appeal against this court’s decision after it was made.

Grounds for judicial review

21.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

22.The applicant did not advance any ground for his intended judicial review in Form 86. In his supporting affirmation dated 15 March 2021, the applicant merely made some general allegations without any particulars or any regard to his own situation. As stated in paragraph 3 of the applicant’s affirmation, he alleged that “I am a national of India and I fear the safety of my life in India”, which was clearly not his case as he is actually a Nepalese.

23.In paragraphs 7 to 12 of the said affirmation, the applicant made some general accusations against the Director. The accusations were summarized as follows:

(1)  The Director had placed an unnecessarily high threshold in determining the realistic prospect of success of his subsequent claim;

(2)  The Director had not taken his unique situation into account fairly and carefully;

(3)  The Director’s 2021 Decision was erred and biased and did not rely on any facts of the case;

(4)  The Director rejected his claim on COVID-19 grounds without knowing statistically how bad the situation was in Nepal;

(5)  It was procedurally unfair that the applicant was not given the opportunity to appeal to the Board against the Director’s 2021 Decision; and

(6)  The Director’s 2021 Decision was biased and was made based on wrong case management power. The Director was merely trying to dispose of his case as quickly as possible and therefore did not consider all the information and evidence available.

24.As aforesaid, the applicant failed to provide any ground for the intended judicial review at the oral hearing before this court but merely alleged that he did not want to go back to Nepal.

Discussion

25.First of all, the applicant’s assertion in ground (1) that the Director had placed an unnecessarily high threshold in determining the realistic prospect of success of his subsequent claim is without any merits. Section 37ZO of the Immigration Ordinance, Cap 115 (“Section 37ZO”) empowers the Director to decide whether a claimant may make a subsequent claim. The assessment of whether the intended subsequent claim has a realistic prospect of success is solely within the ambit of the Director. The applicant has failed to show how the Director had placed an unnecessarily high threshold in determining the realistic prospect of success of his intended subsequent claim.

26.Grounds (2), (3) and (6) are only general assertions without any particulars. The applicant did not specify what unique situation of his was not taken into account, which facts of his case was not relied on, or what information or evidence available were not considered by the Director.

27.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

28.Thus, none of these grounds could establish any valid ground to challenge the Director’s 2021 Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

29.In ground (4), the applicant accused the Director for rejecting his claim on COVID-19 grounds without knowing statistically how bad the situation was in Nepal. This court notes that the Director did conclude that the applicant’s assumption that he would get infected and lose his life if he went back to Nepal was too far-fetched. At the peak of the COVID-19 pandemic when everyone might be infected even with sufficient protection, the applicant’s risk of getting infected would not be higher than anyone then living in Nepal. This court finds nothing unreasonable or irrational in respect of the Director’s conclusion.

30.With regards to ground (5) where the applicant asserted that it was procedurally unfair not to afford him with the opportunity to appeal against the Director’s 2021 Decision to the Board, the relevant legislation[8] does not empower the Board to hear appeals regarding any decisions made by the Director under Section 37ZO.

31.In any event, the applicant does have the right to make an application for leave to apply for judicial review of the Director’s 2021 Decision. This court will scrutinize the Director’s 2021 Decision for any errors of law, procedural unfairness or irrationality.

32.The making of a subsequent claim is stipulated by Section 37ZO of the Immigration Ordinance, Cap 115, which reads as follows:-

“Limitation on subsequent claim

(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.”

33.It is clear that the Director had fully complied with the above provisions when considering the Request.

34.The Director gave detailed reasons in paragraphs 21 to 24 of the Director’s 2021 Decision for its conclusion not to accept that the applicant’s alleged risk of harm in the Request upon his return to Nepal constituted a significant change of circumstances warranting his making of a subsequent claim. This court agrees with the Director’s conclusion and the reasoning supporting it. Thus, there was no significant change of circumstances that would enable the applicant to make a subsequent claim. In fact, the applicant himself also agreed that there was no significant change of circumstances for his case at the oral hearing before this court as aforesaid.

35.The Director also found that even if there had been a significant change in the country condition in Nepal after the applicant’s previous claim was finally determined, such change, when taken together with the materials previously submitted in support of his previous claim, would not give the intended subsequent claim a realistic prospect of success. The applicant’s Request was therefore refused.

36.These were findings of facts within the exclusive ambit of the Director, and this court in a judicial review will not interfere with them save when such findings involved errors of law, procedural unfairness or irrationality.

37.Having considered the applicant’s Request, and having rigorously examined the Director’s 2021 Decision with anxious scrutiny, this court is satisfied that the Director had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO, correctly identified the issues, and analysed the evidence with due care. The Director observed a very high standard of fairness. This court finds no errors of law in the Director’s 2021 Decision or procedural unfairness in the making of that decision. The Director’s 2021 Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational.

38.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Restricted Proceedings Order

39.It is clear that the applicant has abused the judicial process by making the Leave Application, as the applicant’s non-refoulement claim had already been determined by the Director’s 2015 Decision, the Director’s 2017 Decision, the Board’s 1^st Decision, the Board’s 2^nd Decision and the CFI’s 2018 Decision.

40.The applicant had also exhausted all the available means of appeal, including appealing to the Court of Appeal in respect of the First Leave Application and seeking leave to appeal to the Court of Final Appeal. His appeal against the Court of Appeal’s decision was finally disposed of by the Court of Final Appeal on 19 June 2020.

41.The court has inherent jurisdiction to prevent an applicant from abusing its process by making an extended order against such an applicant (see Ng Yat Chi v Max Share Ltd and Another [2005] 1 HKLRD 473).

42.RPO is an appropriate measure to prevent abuses of the court’s process by non-refoulement claimants (see Wahyuni v Director of Immigration [2021] HKCFI 1991).

43.However, this court has to exercise its discretion by reference to the circumstances of the case and the principle of proportionality. A RPO is in substance an injunction and this court has the power to grant an injunction to safeguard the proper administration of justice. At the same time, the exercise of such power has to be balanced against a litigant’s right of access to the court (see The Secretary for Justice v Yuen Oi Yee Lisa [2006] 1 HKLRD 679).

44.Generally, such an order is called for when a vexatious litigant has already involved the appellate process unsuccessfully but persisted by re-litigating his wholly unmeritorious case all over again (see Siti Khotimah v Director of Immigration [2022] HKCA 327 and Indah v Director of Immigration [2022] HKCA 564).

45.This court has called upon the applicant to show cause why a RPO should not be made against him. As aforesaid, the applicant did not make any meaningful submission regarding the proposed RPO which might be made against him. He only asked if he could appeal against this court’s decision on the Leave Application. Apparently, the applicant intends to continue to abuse the court’s process as a means to continue to remain in Hong Kong.

46.This court finds that the applicant is indeed a vexatious litigant who has already involved the appellate process unsuccessfully but persisted by re-litigating his wholly unmeritorious case all over again, and a RPO should be ordered against him to prevent him from abusing the judicial process endlessly.

47.Accordingly, this court makes a RPO against the applicant in the terms as detailed in paragraph 3 of the orders abovementioned.

Conclusion

48.For reasons aforesaid, the Leave Application is dismissed and a RPO in the aforesaid terms is made against the applicant.

Dated the 15^th day of April 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