Case Document

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HCAL 1499/2026

[2026] HKCFI 5998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1499 OF 2026

BETWEEN

	Sultana Shahida	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.  Extension of time for the application for leave to apply for Judicial Review of the decision of Director of Immigration dated 25 June 2025 be refused;

2.  The application for leave to apply for Judicial Review be dismissed; and

3.  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 25 June 2025 refusing to allow the Applicant, a 52-year-old national of Pakistan, to make a subsequent claim for non-refoulement protection after her previous claim raised jointly with her husband and children had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds.

2.Her husband who was also a national of Pakistan had earlier entered Hong Kong illegally, and upon his arrest by the police he then raised a non-refoulement claim for protection due to threats made against him by certain Sunni Muslims in his home village over their religious disputes, and upon being released on recognizance pending the determination of his claim, he then arranged for the Applicant and their 2 minor children to leave Pakistan and to come to Hong Kong to join him in his claim.

3.Accordingly, the Applicant arrived in Hong Kong with their children on 13 March 2012, and when they were refused entry by the Immigration Department, they then raised a non-refoulement claim for protection based on the husband’s claim, which were then jointly assessed and determined together with his claim as one family unit by the Director and with legal representation from the Duty Lawyer Service (“DLS”).

Previous Non-Refoulement Claim

4.By a Notice of Determination dated 26 October 2012 and a Notice of Decision dated 28 July 2017, the Director rejected their claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

5.In his decision, the Director took into account of all the relevant circumstances of the claims of the Applicant and her family and assessed the level of risk of harm from her husband’s enemies upon their return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of her husband’s enemies to seriously harm or kill him or his family over their religious disputes, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant and her family if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 200 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant and her husband as able-bodied adults with working experience to move with their children to other part of the country away from their home district in large cities such as Karachi where it would be difficult if not impossible for anyone to locate them.

6.Their joint appeal against the Director’s decision was then dismissed by the Board on 10 May 2019 after hearing both the Applicant and her husband in evidence and submissions and upon finding no credibility in their non-refoulement claims or any merits in their appeal, and that it also confirmed the Director’s decision.

7.Their joint application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 23 May 2023 after the husband had withdrawn himself from the application upon confirming that his claimed problems in Pakistan had been resolved that it was safe for him to return to his home country, and upon finding none of the proposed grounds of the Applicant and the children for their intended challenge were reasonably arguable, that there was no error of law or procedural unfairness in their process before the Board or in its decision, nor was there any potential child-specific non-refoulement basis in the claim of the Applicant’s younger child who was then just a few months short of his age of 18 years in accordance with the guidance laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, and that there was no prospect of success in their intended application (HCAL 1858/2019 [2023] HKCFI 1395).

8.Thereafter the Applicant and her children were some 14 months late with their intended appeal, and after they were refused by this Court on 24 September 2024 to appeal out of time in the absence of any good or valid reason for their serious delay or any prospect of success in their intended appeal, the Applicant never took any further steps with their intended appeal to the Court of Appeal.

Request To Make Subsequent Claim

9.Less than 2 weeks later on 4 October 2024 the Applicant by herself in writing to the Immigration Department requested to make a subsequent claim on the basis that she still fears of being harmed by her husband’s enemies if returned to her home country as after her husband had returned to Pakistan that she had heard nothing from him since that she fears that something bad had happened to him back home, that the living conditions there are poor and full of crimes and illegal drugs everywhere, and that she needs to remain in Hong Kong to continue to receive her medical treatments for her health issues.

10.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.”

11.Accordingly, the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did with similar statements as before as well as medical reports issued by the Queen Elizabeth Hospital showing that she used to have kidney stones issue but which have since been surgically removed, and that she has also been receiving psychological counselling for her claimed marital problems with her husband as well as stress caused by the imprisonment of her son for drug abuses.

12.By a Notice of Decision dated 25 June 2025, the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of her previous claim, that she failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been any significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success given the unchallenged findings by both the Director and the Board in her previous claim of the availability of state protection and reasonable internal relocation to her upon her return to Pakistan to similarly negate whatever risk that may arise from her intended subsequent claim, that her claim of poor living conditions and crimes problems in her home country simply failed to engage any of the applicable grounds, while her alleged medical issues even if real that her removal would still fall way short of amounting to BOR 3 risk or any other applicable risks for non-refoulement protection.

13.On 26 August 2026, the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or supporting affirmation of the same date in which she just repeated her claim as before of her various medical and psychological issues.

14.The Applicant was by then also seriously out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.As the last day of the 3-month period for her to file her Form 86 fell on 25 October 2025 after discounting the month of August 2025 for court’s vacation, the Applicant was therefore some 10 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

16.In the Applicant’s case, a delay of 10 months must be considered as very substantial and inordinate, for which she explained in both her affirmation and at the hearing of her application that due to her various medical issues as well as her stress caused by the imprisonment of her son for his drug abuse conviction that caused the delay in the filing of her application.

17.The record shows that the Director’s decision was sent on the same day of 25 June 2025 to the Applicant’s then reported address without being returned through undelivered post, and given the experience that she already had from her previous claim and that her medical issues even if true that they do not in my view amount to any justification for her such serious delay.

18.As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, nor was she able to do so at the hearing of her application.

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 subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her 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, ending with the order of this Court dated 23 May 2023 and which the Applicant did not bring any appeal to the Court of Appeal, but that she is still trying to re-litigate her case by making this subsequent claim based on essentially the same facts and basis as before or some invalid bases, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against her.

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 her non-refoulement claims without viable grounds and then to launch her legal challenge to the Court after her futile request to make a subsequent claim has been refused amounts to an abuse of process, and that unless a RPO is made against her, to which she 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 her 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 her 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 29^th day of October 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 29 October 2026 Sultana Shahida 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 29 October 2026 Director of Immigration Putative Respondent’s ref. no.: L/M (32116) in ImmD RA 7/37/C (Formerly RBCZ/226/12; RBCZ/2000067/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)