Saeed Nadeem v. Director of Immigration
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HCAL 1044/2026 [2026] HKCFI 4968 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1044 of 2026 BETWEEN
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 granted. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 9 June 2026 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his letter dated 14 May 2026 (the “2026 Letter”) refusing to process his request to make a subsequent claim (the “Request”). 2.The Applicant had previously lodged a non-refoulement claim with the Immigration Department (the previous claim). His previous claim was assessed under all applicable grounds under the Unified Screening Mechanism and rejected by the Director’s Notice of Decision dated 19 August 2016 (the “2016 Notice”) and Notice of Further Decision dated 16 March 2017 (the “2017 Notice”). His appeal against the two Notices was dismissed by the decision of the Torture Claim Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 29 September 2017 (the “Board’s Decision”). He never challenged the Board’s Decision. His previous claim was treated as having been finally determined. 3.On 24 July 2025, the Applicant wrote a letter to the Immigration Department applying to file a subsequent claim for non-refoulement protection under section 37ZO(2) of the Immigration Department (the “Request”). He quoted some legal principles applicable to non‑refoulement claims, but gave no information on which his intended subsequent claim is based. In his final paragraph, he asked the Immigration Department to assign him a duty lawyer. To his Request, an immigration officer responded by letter dated 22 August 2025 quoting the above background and informed him:
4.On 13 April 2026, the Applicant wrote to the Immigration Department again and asked the Immigration Department to “inform [him] about [his] subsequent claim as soon as possible. The same immigration officer replied by a letter dated 14 May 2026, which is virtually identical to his letter dated 22 August 2025, except for the date of the Applicant’s letter referred to therein. This is the decision which the Applicant seeks leave to apply for judicial review. 5.On 26 May 2026, the Applicant wrote to the Immigration Department repeating that he is making a formal subsequent claims on different grounds which only existed after his appeal to the Board was concluded. He said:
He then repeated his request to be assigned a duty lawyer to handle his case. It is not entirely clear what the Applicant wished to convey by this letter. He even seemed to threaten to revenge against his enemy on his return to Pakistan. But it is clear that he indicated he had a different subsequent claim based on events which happened since his previous claim was finally determined. But again, the same immigration officer replied by a letter dated 6 July 2026, which is virtually identical to his letter dated 22 August 2025, except for the date letter of the Applicant’s letter referred to. It is noted that a month prior, the Applicant had filed the leave application. Discussion 6.At the hearing, the Applicant accepted that he had not actually told the immigration officer any information about his intended subsequent claim in any of his letters prior to his filing of the leave application. It is not clear whether the information in his letter dated 26 May 2026 contains information about his intended subsequent claim or whether the information therein is about his previous claim. Anyway, that is not important. 7.What is important is the immigration officer’s letters dated 22 August 2025 and 14 May 2026 and to some extent his letter dated 6 July 2026 which was issued after the date of the leave application. All these letters are identical, except for the date of the Applicant’s letter referred to therein. All these letters were not issued in the form of the usual “Notice of Decision” rejecting a non-refoulement claim. They were issued in the form of a letter informing the Applicant that the officer will not take further action in respect of the Applicant’s claim. In the Court’s view, regardless of the form, these letters are decisions of the immigration officer on behalf of the Director informing the Applicant that no further action will be taken in respect of his claim. They are, in substance, rejections of his request to make a subsequent claim. 8.The subject matter of the leave application is the immigration officer’s letter dated 14 May 2026. However, other than the words “in the circumstances”, no reason was given by the immigration officer as to why he decided to take no further action in respect of the Applicant’s intended subsequent claim. What do those words convey? At best, they refer to the two requirements under section 37ZO. Those words do not convey the meaning that the Applicant’s application does not meet the requirements of the section. The high standard of fairness requires the decision maker to give reasons for his decision. 9.Even, as the Applicant admitted, he had not provided any information in support of his intended subsequent claim, the high standard of fairness would require the immigration officer to inform him that he had not done so and give him time to file information or evidence before refusing his request to file a subsequent claim, rather than to leave things hanging in the air with the ambiguous statement that “no further action will be taken in respect of [his] claim”. If the Applicant does provide some information, then the immigration officer should discharge his duty of joint enquiry to help the Applicant to establish his claim, if it could be established. Or to properly reject or dismiss his application, if it could not. It is at least arguable that what this officer did fell far below the high standard of fairness observed by his colleagues in referring the claim to the Duty Lawyer Service for consideration of the publicly-funded legal assistance, informing him in plain language the need to provide information in support of his intended subsequent claim, giving him time to do so and advising him on how to apply for extension of time to comply if the information or evidence could not be made available within the time allowed, etc. It is at least arguable that the decision not to take those further actions as suggested above amounted to procedural unfairness as having been made in breach of the high standard of fairness. 10.For the above reasons, leave to apply for judicial review on the above ground is given. The Applicant has been reminded of the requirement to issue and serve the originating summons on the Director within fourteen days of this Form CALL-1. Dated the 31st day of August 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
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