MOHDIMRAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 901/2024

[2024] HKCFI 2531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 901 OF 2024

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J U D G M E N T

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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 9 May 2024 (the “Director’s 2^nd Decision”) refusing his subsequent claim under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

2.  The applicant requested a hearing. However, he failed to attend the hearing on 28 August 2024 without prior notice to the Court. I shall deal with his application on paper.

The applicant and the procedural history

3.  The applicant is an Indian. He made a non-refoulement claim on 28 July 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by the family of his ex-girlfriend because they disliked his relationship with her.

4.  According to the applicant, he acquainted with a girl, aged 16, called Ritika in 2006 or 2007 and they fell in love with each other. Their religious beliefs are different. Ritika’s family opposed their relationship. In 2014, Ritika’s brothers saw them in the park and in the farmland. They attacked him with bare hands and kicks. He was injured, with bruises and scratches all the body in the first instance; and his right hand was twisted badly, causing fracture in the second instance where he had to stay in hospital for 4 days for treatment. Upon his father’s advice, he moved to live in his maternal aunt’s home for about 1 year. He then returned to his home. In March 2015, Ritika’s family, with her father and brothers came to his home with a gun. They fired the gun twice in the air. They threatened to kill him if they saw him again and they told him to leave the place. On 27 March 2015, he left India for Hong Kong. He considered that police in India was corrupt and he would not have state protection. He also considered that internal relocation was not viable as his enemies would find him.

5.  He arrived in Hong Kong on 27 March 2015 as a visitor. He was allowed to stay as such until 29 March 2015. He overstayed. He surrendered to the Immigration Department on 14 April 2015. He lodged a non-refoulement claim on 28 July 2015.

6.  By way of the Director’s Decision dated 24 April 2018 (“the Director’s 1^st Decision”), the Director dismissed the applicant’s claim. The Director found that: (i) low intensity and frequency of past ill-treatment from his enemies was indicative of a small future risk if he returned to India [17]-[23]; (ii) state protection would be available [24]-[33]; and (iii) internal relocation was viable [34]-[39].

7.  The applicant appealed the Director’s 1^st Decision to the Board on 7 May 2018. However, he withdrew his appeal on 15 January 2019 and was repatriated to India on 30 January 2019. On 31 January 2019, the Board dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision.

8.  On 19 June 2023, the applicant arrived in Hong Kong as a visitor and he overstayed since 4 July 2023. He was arrested by the police on 9 September 2023 for making a false statement to the Immigration Department and overstaying. The applicant was imprisoned until 15 March 2024 for the said offences.

9.  On 8 February 2024, the applicant made a subsequent non-refoulement claim to the Director. He was legally represented in the submission of his additional materials.

10.  In a statement enclosed in the applicant’s letter dated 23 April 2024, he claimed that he met his ex-girlfriend once or twice after he returned to India in 2019. In mid-2020, the brother of the applicant’s ex-girlfriend tried to shoot the applicant because he thought that he eloped with his sister. The applicant managed to escape from the shot. He reported the shooting to the police, but they did not take any action. Thereafter, the applicant moved to stay with her aunt for two years, after which he relocated to his friend’s place in Nepal. After staying for five months, his friend informed him that the brother of his ex-girlfriend had followed him and would come to attack him soon. The applicant therefore returned to India and subsequently fled to Hong Kong on 19 June 2023.

11.  While in Hong Kong, the applicant was told by his family that the brother of his ex-girlfriend was still after him. The applicant considered internal relocation not viable because his ex-girlfriend’s family was politically influential so that he would be easily located. The applicant was also of the view that he could not seek protection from the police because they were corrupt.

12.  Details of the applicant’s story can be found in paragraph 13 of the Director’s Decision dated 9 May 2024 (“the Director’s 2^nd Decision”).

The Director’s 2^nd Decision

13.  In the Director’s 2^nd Decision, the Director found that (i) the past action taken by the brother of his ex-girlfriend indicated that he had no real intention to seriously harm or kill the applicant [15]; (ii) the applicant’s dispute with the brother of his ex-girlfriend was private in nature and that there was availability of state protection according to the country of origin information [16] and (iii) internal relocation would be viable [17].

14.  The Director rejected the applicant’s claim because there had not been a significant change of circumstances since his previous claim was finally determined; and the change, if any, would not result in a realistic prospect of success for his subsequent claim [18].

Application for leave to apply for judicial review of the Board’s Decision

15.  The applicant has filed Form 86 dated 5 June 2024 for leave to apply for judicial review of the Director’s 2^nd Decision.

16.  In his affirmation in support of his application, he says his life will be in danger if he returns to India. He has not raised any ground to challenge the Director’s 2^nd Decision.

DISCUSSION

17.  The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his 2^nd 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).

18.  The Court will bear in mind that the Director’s 2^nd Decision should be examined with rigorous examination and anxious scrutiny.

19.  The Director found that the applicant’s enemies are the same in his previous claim, which had been considered and rejected. There is not any significant change of circumstances since his previous claim, which will assist his application for a subsequent claim.

20.  The applicant has no valid reason to challenge the Director’s 2^nd Decision. There is no reason that this Court should interfere with the Director decisions.

21.  There is no reasonable prospect of success in his intended application for leave for judicial review of the Director’s 2^nd Decision.

DISPOSTION

22.  I dismiss his application for leave to apply for judicial review of the Director’s 2^nd Decision.

23.  Since there is no evidence to show that the applicant has abused the court’s process, I refrain from imposing RPO on the applicant. However, the applicant should take note that the Court has the power to impose RPO on him if he intends to abuse its process in future.