Case Document

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HCAL 623/2026

[2026] HKCFI 4271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 623 OF 2026

BETWEEN
	Gurung Mansingh	Applicant
	and
	Director of Immigration	Putative
		Respondent

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 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 Bruno Chan:

1. Leave to apply for Judicial Review be refused; and

2. A Restricted Proceedings Order (RPO) be made against the Applicant.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 5 February 2026 refusing to allow the Applicant to make a second subsequent claim for non-refoulement protection after both his previous non-refoulement claim and his first subsequent claim had been rejected by the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds.

2.The Applicant is a 36-year-old national of Nepal who arrived in Hong Kong on 2 July 2013 as a visitor with permission to remain as such up to 7 July 2013 when he did not depart and instead overstayed, and was arrested by police on 29 July 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by people of the Communist Party of Nepal (Maoist) (“Maoists”) due to a land dispute in his home district between his father and his paternal uncle Mangal who was a member of the Maoists.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 4 September 2015 and a Notice of Further Decision dated 9 June 2017 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

4.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle Mangal or the Maoists upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of either of them to seriously harm or kill him other than to harass and intimidate him and his family over the land dispute, that in any event it was a private land dispute between his father and his uncle and within the family only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 31 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other part of the country away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for anyone to locate him.

5.The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 29 June 2017 after hearing him in evidence and submissions and upon finding no merits in his claim or appeal, and that it also confirmed the Director’s decisions.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was then refused by Deputy High Court Judge Woodcock (as she then was) on 26 March 2018 (HCAL 1164/2017), and that his subsequent appeals were also dismissed by the Court of Appeal on 27 April 2018 and the Court of Final Appeal on 8 June 2020.

1^st Request to Make Subsequent Claim

7.Less than one week later on 12 June 2020 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that he had been informed by his family that his uncle Mangal had subsequently been killed by unknown persons but for which the Maoists had blamed the Applicant’s father and had murdered his father in revenge, and hence the Applicant also feared that the Maoists may go after him a swell upon his refoulement to Nepal.

8.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance 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.”

9.Somehow the Director acceded to the Applicant’s request, and proceeded to assess and determine his subsequent claim again on all the applicable grounds under the USM, and for which the Applicant submitted further supporting documents and attended another screening interview before an immigration officer with legal representation again from DLS.

10.By a Notice of Decision dated 4 January 2021 the Director again rejected the Applicant’s subsequent claim upon finding no reliable evidence that his father had indeed been killed by the Maoists other than unsubstantiated hearsays/rumours/speculations and just some documents showing some cremation ceremony in Nepal, that even if his father were indeed killed by the Maoists that there was no evidence of any further adverse interests in the Applicant over any land dispute now that all the persons involved in that dispute had died and that there is no reason to expect or suggest that there would still be any anyone to still have any adverse interest in the Applicant after all these years since he left the country in 2013, and that in any event the basis of this subsequent claim was essentially the same as that of his previous claim arising from some private land dispute within his family only and without any official involvement that state protection as well as reasonable internal relocation as found without challenge in his previous claim would similarly be available to the Applicant upon his return to Nepal to negate whatever risk that may arise from his subsequent risk.

11.On 19 January 2021 the Applicant again lodged an appeal to the Board against this decision of the Director, and for which he attended not one but two oral hearings on 10 and 21 November 2022 before the Board during which he again gave oral evidence and answered questions raised of his claim by another Adjudicator for the Board.

12.By a decision dated 18 April 2024 the Board rejected his claim and dismissed his appeal as well as confirming the Director’s decision upon finding multiple material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claims of his father being killed by the Maoists in revenge for the death of his uncle Mangal which were all based on hearsays upon hearsays as well as rumours and speculations that no credence could be placed thereon, and concluded that the Applicant was not a witness of truth and that the material events and situations that he had described in Nepal upon which his subsequent claim was based were not factually correct according to relevant COI and so lacking in credibility that it was satisfied that he had fabricated them so as to create a basis upon which to apply for non-refoulement basis for a second time that his subsequent claim again failed on all the applicable grounds.

13.On 5 July 2024 the Applicant again filed a Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge which this Court on 22 August 2024 refused and rejected as just bare and vague assertions without any necessary or relevant particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational in assessing the credibility of his claim, or how did the Adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, and of which the Applicant also failed to do at the hearing of his application (HCAL 1070/2024 [2024] HKCFI 2139).

14.The Applicant’s subsequent appeals against the Court’s decision were again dismissed by the Court of Appeal on 3 January 2025 (CACV 351/2024 [2025] HKCA 35), while his Notice of Motion for leave to appeal to the Court of Final Appeal was also refused on 18 July 2025 (CACV 351/2024 [2025] HKCA 643).

Request to make a Second Subsequent Claim

15.Some 3 months later on 10 October 2025 the Applicant again in writing to the Immigration Department requested to make a second subsequent claim that he still fears of being harmed or killed by the Maoists who are now said to blame him for his paternal uncle Mangal’s death and have filed such false charges against him to the Nepali authorities, and that he also fears of being harmed by the Gen Z protesters for the present political situation in Nepal and/or by the Buddhist family of his wife for religious reason as he is a Hindu if he is refouled to Nepal.

16.Again the Director required the Applicant to comply with the restrictions stipulated by Section 37ZO of the Immigration Ordinance for making a subsequent claim as noted above to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from DLS.

17.By a Notice of Decision dated 5 February 2026 the Director refused to allow the Applicant to make a second subsequent claim upon finding that the basis of his claimed fear of harm from the Maoists was essentially the same as that of his previous claim as well as his first subsequent claim and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there had been any significant change of circumstances since his previous claim and subsequent claim were determined, that for his other claims of risk of harm from the Gen Z protesters and/or his wife’s family due to religious conflicts that he had also failed to provide any credible or reliable evidence in writing to support his such claims in the absence of any such threats ever from those Gen Z protecters or his wife’s family given the fact that he was all along out of the country to have any adverse interests in him, and that in any event no credence can be attached to any such claims which were all found to be unreliable and incredible that there was nothing to indicate that any of them when taken together with the material previously submitted in support of his previous claim or first subsequent claim would give his second subsequent claim any realistic prospect of success.

18.On 24 March 2026 the Applicant filed a Form 86 in these proceedings again for leave to apply for judicial review of the Director’s decision, and in his supporting affirmation of the same date he attached a bundle of documents relevant to his previous claims and just put forward some bare and wild assertions of error of law or procedural impropriety or irrationality in the Director’s decision but without any relevant or necessary details or particulars or elaboration as to how they actually apply to his case or in the Director’s decision, nor was he able to do so in his additional 7-pages statements dated 7 July 2026 or at the hearing of his application, and given his own concession made in his affirmation at [80] when he readily admitted that he is in fear of the same enemies for the same reasons as in his previous claims when all of which had earlier already been correctly rejected by both the Director and the Board as not credible, and which were subsequently also found by the Court of Appeal to be not susceptible to appeal or of no merits at all, and of which the Director was entitled to take into account under Section 37ZP(3) of the Immigration Ordinance in assessing the credibility of his intended second subsequent claim, I do not find any reasonably arguable basis for his intended challenge of the Director’s decision.

19.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a second subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly dismiss his leave application.

Restricted Proceedings Order

20.Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined in the previous proceedings and not just once but twice, ending with the latest order of the Court of Appeal dated 18 July 2025, but that the Applicant is still trying to re-litigate his case again by making this second subsequent claim based on essentially the same facts and bases as before or on invalid basis, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him.

21.Section 27 of the High Court Ordinance, Cap 4 provides as follows:

“Restriction of vexatious legal proceedings

(1) The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that –

(a) no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b) any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

(2) The Court of First Instance may not make an order under subsection (1) unless –

(a) it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(b) it has heard the person against whom the order is to be made or given him an opportunity of being heard.

(3) An order made under subsection (1) –

(a) may be made on such terms and conditions as the Court of First Instance thinks just; and

(b) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

…”

22.Relevantly, Section 27A also provides:

“(1) Leave for the institution or continuance of any legal proceedings by a person who is the subject of an order for the time being in force under section 27(1) shall not be given unless the Court of First Instance is satisfied that –

(a) the proceedings are not an abuse of the process of the court in question; and

(b) there are reasonable grounds for the proceedings.

(2) No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.”

23.In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section.

24.His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]).

25.In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] –[40]).

26.In the present case, it is clear from the above that the Applicant’s conduct in seeking persistently to re-litigate, again and again, his non-refoulement claims without viable grounds amounts to an abuse of process, and that unless a RPO is made against him, to which he was unable to answer or raise any valid objection at the hearing, I am convinced that the Applicant will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

27.Accordingly, I make the following order:

(1)  The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to any non-refoulement claim of the Applicant in the High Court, or any appeal, including this Order, without the leave of a Judge 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 this Court or 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 under 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.

Disposition

28.The Applicant’s application for leave to apply for judicial review is dismissed.

29.A RPO in terms of paragraph 27 be made against the Applicant.

Dated the 30^th day of July 2026

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 30 July 2026 Gurung Mansingh Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30 July 2026 Director of Immigration Putative Respondent’s ref. no.: L/M (35313) in ImmD RA 7/37/C (formerly RBCZ/0010610/20, 9001958/17 & 3001155/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)