KHAN IMRAN v. DIRECTOR OF IMMIGRATION

HCAL 554/2024

[2024] HKCFI 1479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 554 OF 2024

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;

Leave to apply for judicial review be refused.

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 6 March 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.  The Applicant is a 38-year-old national of Pakistan who had previously entered Hong Kong illegally on 20 June 2009 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by a fellow villager by the name of Baba in revenge for the killing of Baba’s younger brother by the Applicant’s cousin.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 5 February 2015 and a Notice of Further Decision dated 2 December 2016 the Director rejected the Applicant’s previous claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his 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”).

4.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his fellow villager Baba or his men upon his return to Pakistan as low due to the absence of any past ill-treatment from them, that there is no evidence of any intention of them to harm or kill the Applicant other than just his own speculations, that in any event it was a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant 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 196 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for anyone to locate him.

5.  The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 2 November 2017 after hearing him in evidence and submissions in 2 oral hearings and upon finding no evidence of any threats made against him by his fellow villager Baba or any reason or intention for Baba to do so that it doubted the Applicant’s claim of fear of harm from Baba that caused him to leave Pakistan to come to Hong Kong for protection, that in any event even if such risk were real that it arose from some private personal dispute between the 2 of them without any state or official involvement that state protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other parts of the country away from his home village without any risk of being located by anyone that his claim for non-refoulement protection failed on all the applicable grounds, and accordingly the Board also confirmed both decisions of the Director.

6.  The Applicant did not raise any legal challenge against the Board’s decision by way of judicial review to the Court, and instead by a letter dated 26 January 2018 to the Director he declared his willingness to return to his home country, and accordingly he was repatriated to Pakistan on 14 November 2018.

Request To Make Subsequent Claim

7.  Some 5 years later on 4 November 2023 the Applicant was arrested by police for illegally entering Hong Kong again, whereupon on 11 November 2023 he in writing to the Immigration Department requested to make a subsequent claim on the basis that if refouled to Pakistan he would be harmed or killed by a local gangster over some dispute between the gangster and the Applicant’s cousin and friends.

8.  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.”

9.  Accordingly, on 13 December 2023 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”) with the following information in support of his request to make a subsequent claim:

(1)  Upon returning to Pakistan he made his home in Lahore and led a normal life without incidents;

(2)  However, on one occasion in October 2022, while he together with his cousin and friends were attending an Islamic festival in Lahore, his cousin got into a dispute with a man known to be a local gangster by the name of Babu during which Babu pulled out a pistol and shot and killed his cousin;

(3)  After the shooting Babu fled from the scene and went into hiding, and after the matter had been reported to the police, Babu was placed in the police’s wanted list for the murder of the Applicant’s cousin; and

(4)  The Applicant was shocked by the murder of his cousin and became fearful of any further attacks from Babu and his men, he therefore fled from Lahore to Gujranwala, and on 4 August 2023 he departed Pakistan for China, and from there he later sneaked into Hong Kong to seek protection.

10.  By a Notice of Decision dated 6 March 2024 the Director accepted the Applicant’s claimed fear of harm from the local gangster Babu over his dispute with the Applicant’s cousin would amount to a significant change of circumstances since his previous claim was determined, but found such changes when taken together with the material previously submitted in support of his previous claim would not give his subsequent claim any realistic prospect of success given that his claimed risk of harm from Babu also arose from some private personal dispute between them without any official involvement as in his previous claim that state protection as well as reasonable internal relocation would similarly be available to the Applicant upon his return to Pakistan to negate such risk that there is no realistic prospect of success in his subsequent claim, and accordingly refused to allow his request to do so.

11.  On 3 April 2024 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 his Form, and in his supporting affirmation filed on the same day he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor was he able to provide any grounds or explanations at the hearing of his application. As such I do not find any reasonably arguable basis for his intended challenge of the Director’s decision.

12.  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 for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review given the unchallenged findings by both the Director and the Board in his previous claim of the availability of state protection and reasonable internal relocation to the Applicant upon his return to Pakistan to similarly negate any such risk which may arise from his subsequent claim of which the Director has correctly found to be of similarly private nature without any state or official involvement as in his previous claim, I therefore refuse to grant leave and accordingly dismiss his application.

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