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HCAL 684/2024
[2024] HKCFI 1741
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 684 of 2024
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BETWEEN
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Anish |
Applicant |
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Director of Immigration |
Putative |
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Respondent |
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 K.W. Lung:
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 25 March 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 328 of 2017 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).
2. The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process.
3. The applicant appeared before the Court on 5 June 2024. Before me, the applicant agreed that he relied upon the same reasons of his previous claim for his subsequent claim.
4. The applicant applied for adjournment of his case because he had applied for legal aid. The Court received a notice dated 27 May 2024 from the Director of Legal Aid.
5. Because of the applicant’s admission, the Court refused to adjourn the hearing because there is no merit in the applicant’s application. The hearing therefore proceeded.
The procedural history
6. The applicant is a national of Bangladesh. He came to Hong Kong on 18 April 2013 and was arrested by police on 24 April 2013 for illegally remaining in Hong Kong. He was convicted of the offence and was sentenced to 15 months’ imprisonment. By written signification dated 7 August 2013 he lodged a non-refoulement claim (his “previous claim”) on the applicable risks.[1]
7. His previous claim is based upon his fear that, if refouled, he would be harmed or killed by (i) Porosh or people from Bangladesh Nationalist Party (“BNP”) and Jamaat-e-Islam (“JEI”) because he was a supporter of the Awarmi League (“AL”); (ii) the Dekandar family because of a land dispute; and (iii) three money lenders because of his default in loan repayments.
8. By Notice of Decision dated 11 July 2014 and the Notice of Further Decision dated 6 February 2017, collectively called (“the Director’s Notices of Decision”), the Director rejected his claim of all applicable risks as they were not substantiated.
9. He appealed to the Board. By the Board’s decision dated 21 June 2017 (“the Board’s Decision”), the Board dismissed his appeal and confirmed the Director’s Notices of Decision.
10. He applied for leave for judicial review of the Board’s Decision. On 20 October 2017, the Court of the First Instance refused leave for his application.
11. He was then repatriated to Bangladesh on 3 May 2018.
12. On 8 November 2023, the applicant was arrested by police for illegal remaining in Hong Kong. Police referred him to the Immigration Department. He is now being detained at CIC.
13. By a letter dated 5 December 2023, he applied to the Director for a subsequent claim.
14. By the Director’s Decision, the Director refused his application.
The subsequent claim application
15. 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.
16. The applicant, through the duty lawyer, submitted additional information to the immigration officer.
17. Having considered the additional materials, the immigration officer considered that the applicant’s current fears if he returns to Bangladesh are:
1) he will be harmed or killed by Dokandar family due to the land dispute; and
2) he will be ill-treated by people from the AL because he became a supporter of BNP. This change of loyalty was because he was not happy with the previous local AL president and there was a marriage between his niece and the son of the Kalm Union President of BNP.
18. The immigration officer acknowledged that the applicant had requested a meeting with the case officer. However, the duty lawyer did not make the request. The immigration officer did not state whether the applicant’s request would be entertained if his duty lawyer had made the request. The immigration officer considered his application on the available information [17].
19. The immigration officer acknowledged that there has been a significant change of circumstances of the applicant’s case. In paragraph 21 of the Board’s Decision, the immigration officer stated:
“… … As your alleged risk of harm in the Request was from AL as your became a supporter of BNP. It is considered that there has been a significant change of circumstances of your case. The main question is then, whether 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….”
20. The immigration officer refused the applicant’s application for the reasons below.
1) Even if it is accepted that the policemen had beaten him, it is considered to be the misconduct of individual police officers, which could not be taken as the stance of the whole police authority and government of the state [22].
2) There is no indication from the evidence that he was ever seriously harmed by the AL people. The prime objective of those AL people appeared to deter him from supporting BNP rather than intended to seriously harm or even kill him. Even if assuming that he and his family members were assaulted by the AL men, it was originated from a private dispute without official involvement [23].
3) This private dispute is of similar nature with his previous dispute with the people of BNP in his previous claim. In the previous claim, the case officer had already indicated that there was objective information showing that the local authorities performed their duties even when the suspected offenders were members of BNP, JEI or AL in Bangladesh. There is no information from the applicant that could refute this important factor [24].
4) There is no evidence that state protection will not be available to him if her returns to Bangladesh [25]. The country of origin information (“COI”) show that he may lodge complaint against any police or government officials for their misconduct, such as police turning him down for assistance [27].
5) Internal relocation will be viable to him, which will neutralize or lessen the risk of being harm by Dekandar family or the AL people [28].
The application for leave to apply for judicial review application
21. The applicant has filed Form 86 on 30 April 2024 to apply for leave for judicial review of the Director’s Decision.
22. The applicant has submitted statements of grounds in support of his application, which I shall summarize below.
1) There was no interview with the immigration officer despite his request and he was not given the right to appeal against the Director’s Decision.
2) His duty lawyer was not discharging his duty as he did not request an interview with the immigration officer on his behalf.
3) The immigration officer did not consider the applicant’s subsequent claim as he did not consider the significant changes even though he accept there had been significant changes. See paragraph 29 of the Director’s Decision.
4) The immigration officer did not give weight properly to the documentary proofs.
Discussion
23. 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).
24. 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 he wanted to obtain documents from his own country. I shall now consider his reasons in support of his application.
25. A subsequent claim must be made in accordance with section 37ZO of the Ordinance, which provides, inter alia:
“37ZO. Limitation on subsequent 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.
26. The applicant has raised his vigorous contention against the immigration officer’s finding that there has been a significant change of circumstances in his subsequent claim on one hand, but refused his application on the other. In paragraph 21 of the Director’s Decision, the immigration officer did admit that there has been a significant change of circumstances in his subsequent claim. The immigration officer then said that the main issue is whether such change of circumstances, when considered with the previous claim, will give him a realistic chance of success in his subsequent claim.
27. The immigration officer’s admission of significant change of circumstances clearly refers to the factual change of circumstances, that is to say, he had converted from being a supporter of AL to be a supporter of the BNP. However, the nature of his fear, that is to say, his fear of being harmed or even killed by his enemy, now the AL, instead of BNP in his previous claim, is the same.
28. The other enemy is the Dokandar family, same as in his previous claim.
29. The nature of his fear is that he may be harmed or killed by his enemies if he returns to Bangladesh, which forms the basis in support of his subsequent claim. It is in this respect that the immigration officer considered that though the identities of his enemy, i.e. the AL and the BNP are different, the nature of fear remains the same.
30. The applicant had admitted that he relied upon the same reasons in his previous claim in support of his subsequent claim application. He is correct.
31. In the circumstances, those grounds in paragraph 22 do not assist him.
32. Under the Ordinance, there is no statutory obligation on the immigration officer to hold an interview for his application for subsequent claim. He is right to say that his duty lawyer did not raise his request for an interview with the immigration officer. The immigration officer has not indicated whether he would accede to his request if his duty lawyer had made such a request on his behalf. This is a procedural irregularity. The question is whether this procedural irregularity will cause prejudice to the fairness in the Director’s assessment of his application. The court in Wong Chau Ming v Secretary for Civil Service [2023] HKCFI 2468, 10 October 2023, Coleman J held:
“82. … What must be remembered in cases of this kind, which look to administrative not judicial processes, is that unfairness, procedural or substantive, must be found to constitute an abuse of power. The unfairness must be conspicuous in some way. Technical omissions, minor slips, inconsequential delays or errors of form that have no consequence, unless they in totality can be seen to have destroyed the integrity of the entire process, do not go to prove that administrative process is rendered unlawful.”
33. It is the applicant’s burden to show what prejudice he has suffered because of there being no interview with the immigration officer. He has already set out all his facts in support of his subsequent claim. The immigration officer had considered the facts. Under the procedures for subsequent claim application, the applicant has no right to appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office. The applicant cannot complain. It is quite clear that the immigration officer has considered the applicant’s evidence, including the documentary evidence before he made his decision refusing the applicant’s application.
34. In the circumstances, the applicant has failed to show that he has any realistic prospect of success in his intended application for judicial review of the Director’s Decision.
COSNCLUSION
35. I refuse to grant leave to the applicant to apply for judicial review of the Director’s Decision.
36. Having considered that the applicant has relied upon the change of the factual circumstances for his subsequent claim, I refrained from imposing a RPO on him on this occasion. He should bear in mind that if he relies upon the same facts in support of his application to the court again, the court may consider imposing a RPO on him.
37. Accordingly, I dismiss his application.
Dated the 18th day of July 2024
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(M.O. WONG)(Ms)
for Registrar, High Court
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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:
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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)).
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Sent to the Applicant
on 18/7/2024
Anish
Applicant’s ref. no:
Nil |
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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 18/7/2024
Director of Immigration
Putative Respondent’s ref. no.:
L/M (29622) in ImmD RA 7/37/C (formerly RBCZ/488/13 and RBCZ/9000114/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The applicable risks refer to :
a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
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