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HCAL 2105/2019
[2024] HKCFI 2553
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2105 of 2019
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BETWEEN
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Shahzad Aamer |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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:
1. This is the applicant’s application to apply for leave to apply for judicial review of the Director’s Notice of Decision dated 31 May 2019 where the Director of Immigration (“the Director”) refused his subsequent claim for non-refoulement. The applicant did not request a hearing. His application is dealt with on paper.
2. The applicant’s application is refused and dismissed for the following reasons:
a. He had made his previous claim on all applicant risks[1]. The factual basis is that if he returns to Pakistan, he will be harmed or killed by members of Muttahida Qaumi Movement as he had witnesses a murder case. The Director had considered his claim and rejected it by Notice of Decision dated 24 June 2016 (“the Director’s Decision”). He appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office.
b. The applicant withdrew his appeal on 18 July 2017 and he was then removed from Hong Kong to Pakistan on 14 August 2017.
c. On 11 April 2019, the applicant surrendered to the Immigration Department for remaining in Hong Kong illegally.
d. He then lodged a subsequent claim for non-refoulement without providing any further information to the immigration officer upon request. He therefore relied upon the same reasons in his previous claim for his subsequent claim application.
e. He fails to satisfy the conditions under section 37ZO of the Immigration Ordinance, Cap.115[2].
f. In his affirmation in support of this application, the applicant has raised no reasonable ground to challenge the Director’s Decision.
Dated the 10th day of October 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 10/10/2024
Shahzad Aamer
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 10/10/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
-
Director of Immigration
Putative Interested Party’s ref. no.:
L/M (19347) in ImmD RA 7/37/C
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] All applicable risks means
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk under 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 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”)
[2] 37ZO of the Ordinance
Limitation on subsequent claim
(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.
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