SYED FAISAL HUSSAIN v. DIRECTOR OF IMMIGRATION

HCAL 653/2024

[2024] HKCFI 1733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 653 of 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 21 November 2023 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2700 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

2.  The applicant appeared before the Court on 27 May 2024.

3.  Before me, he agreed that he relied on the reasons of his previous claim in support of this application. He also submitted some papers for my consideration.

The procedural history

4.  The applicant is a national of India. He entered Hong Kong on 12 January 2006 and was permitted to remain as a visitor until 14 January 2006. He did not depart and had overstayed. On 1 July 2016, he lodged a torture claim, which was rejected. His appeal to the Board was dismissed.

5.  On 4 September 2013, he lodged a non-refoulement claim on BOR 3 risk and Persecution risk, and he had also made his non-refoulement claim on BOR 2 risk subsequently (“his previous claim”)

6.  His previous claim is based upon his fear that, if refouled, he would be harmed or killed by some Hindus because of his religion as a Muslim.

7.  By Notice of Decision dated 16 October 2015 and Notice of Further Decision dated 6 December 2016, the Director rejected his claim on BOR 3 risk, Persecution and BOR 2 risk as they were not substantiated.

8.  He appealed to the Board. By the Board’s Decision dated 15 November 2018, the Board dismissed his appeal.

9.  On 28 November 2018, the applied to the Court of the First Instance for leave for judicial review of the Board’s Decision. The Court of the First Instance granted leave to apply for judicial review of the Board’s Decision.

10.  However, he applied to withdraw his application for judicial review of the Board’s Decision. An order dated 8 May 2023 granted leave for him to withdraw his judicial review application.

11.  By letter dated 10 August 2023, he applied to the Director to re-open his case and said that he could not go back to his home country. In his letter, he said that he wanted to make a subsequent claim. The Director therefore treated his application as a subsequent claim. I consider that the Director’s decision is right as his non-refoulement claim had been considered and rejected by the Director under section 37ZI of the Ordinance. The applicant could not apply to re-open his claim.

12.  By the Director’s Decision, the Director refused his application.

The subsequent claim application

13.  Under section 37ZO of the Ordinance, he has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.

14.  The applicant submitted a statement in support of his subsequent claim application, which the immigration officer had considered.

15.  The immigration officer was aware of the new grounds as raised by the applicant in support of his subsequent claim application. The immigration officer refused the applicant’s application for the reasons below:

“9. In your previous non-refoulement claim, you alleged that if you were returned to India, you would be harmed or killed by some Hindus because you are a Muslim…

12. All the available information provided has been carefully considered. In gist, you currently fear if you are returned to India, you will be harmed or even killed by the Hindus because you are a Muslim. Even if it is accepted that the Hindus is tracing you, your current fear is still originated from your previous dispute with the Hindus, which had already been submitted in your previous claim. In any event, the said dispute had already been thoroughly considered in your previous claim (see paragraph 9 above) which was not accepted as substantiated. As such, your current alleged fear does not amount to a significant change of circumstances of your case warranting your making of a subsequent claim….”

16.  The immigration officer further found that state protection would be available to the applicant [15] and internal relocation is a viable option for him [17].

17.  The claimant’s application for subsequent claim was therefore rejected.

The application for leave to apply for judicial review application

18.  The applicant has filed Form 86 dated 24 April 2024 to apply for leave for judicial review of the Director’s Decision.

19.  The applicant has filed an affirmation, in which he did not raise any specific ground. However, he submitted some papers in Court for my consideration.

Discussion

20.  The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact-finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

21.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the reason for this subsequent claim is same as those reasons in support of his previous.

22.  He submitted some papers for my consideration. The papers mainly concern the political tussles between the various regions in India and the problems have not been solved. However, I consider that these political issues are not relevant to the applicant’s subsequent claim.

23.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

24.  In view that the applicant agrees that he relies on the same facts in his previous claim for this subsequent claim application, there is no realistic prospect of success in the applicant’s intended judicial review of the Director’s Decision.

CONCLUSION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Director’s Decision. Accordingly, I dismiss the applicant’s application.

26.  On this occasion, having considered that he had withdrawn his application to the Court of the First Instance shortly after he lodged his application for judicial review, I refrain from imposing a Restrictive Proceedings Order (“RPO”) on him. If he continues to make further application to the court on the same facts of the claim, he will be liable for abusing the court’s proceedings and the court will consider making a RPO on him.

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