KHAN MOHAMMAD SHADAB v. DIRECTOR OF IMMIGRATION

HCAL 1577/2020

[2025] HKCFI 4406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1577 OF 2020

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 (“Director”) dated 10 July 2020 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 (“Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds.

2.  The Applicant is a 39-year-old national of India who arrived in Hong Kong on 17 May 2014 as a visitor with permission to remain as such up to 31 May 2014 when he did not depart and instead overstayed, and was arrested by police on 10 June 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s father who disapproved of their relationship.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 6 April 2016 and a Notice of Further Decision dated 26 January 2017 the Director rejected the Applicant’s 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 decision 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 girlfriend’s father upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of any real intention of his girlfriend’s father to seriously harm or kill him other than to deter him from maintaining the relationship with his girlfriend, that in any event it was a private and personal dispute between him and his girlfriend’s father only 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 India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million 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 Mumbai or New Delhi where it would be difficult if not impossible for his girlfriend’s father to locate him.

5.  The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 7 July 2017 after he failed to attend the scheduled hearing without explanation and upon finding no merits in his claim or appeal, and that it also confirmed the Director’s decisions.

6.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by Campbell-Moffat J on 16 March 2018 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 625/2017 [2018] HKCFI 461).

7.  The Applicant’s subsequent appeal against the decision of Campbell-Moffat J was dismissed by the Court of Appeal on 4 December 2018 (CAMP 75/2018 [2018] HKCA 897).

8.  The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decisions was also dismissed by the Court of Appeal on 20 February 2019 ([2019] HKCA 129), and then by the Appeal Committee of the Court of Final Appeal on 6 January 2020 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

9.  Shortly thereafter the Applicant failed to report on his recognizance, and was subsequently arrested by police more than 3 months later on 29 April 2020, whereupon he was transferred to the Immigration Department for detention at the Castle Peak Bay Immigration Centre (“CIC”) pending removal from Hong Kong.

Request To Make Subsequent Claim

10.  However, by letters dated 1 and 3 June 2020 to the Immigration Department, the Applicant requested to make a subsequent claim on the basis that his girlfriend had since committed suicide in 2018, and for which her family has blamed him and has sworn to take revenge against him that he still fears of being harmed or killed by his girlfriend’s father and family if refouled to India.

11.  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.”

12.  Accordingly, the Director by a letter dated 10 June 2020 required the Applicant to provide further information and evidence in writing in support of his request within 14 days, and upon being interviewed by an immigration officer at CIC with the assistance of an interpreter, the Applicant confirmed that at that moment he did not have any further documents to submit in support of his request.

13.  By a Notice of Decision dated 10 July 2020 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success 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 India to similarly negate whatever risk that may arise from his intended subsequent claim.

14.  On 28 July 2020 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 or supporting affirmation of the same date other than a bare assertion that the Director reached the decision wrongly in assessing his request to make a subsequent claim under the USM but without putting forth any proper ground for his intended challenge, nor was he able to do so at the subsequent hearing of his application.

15.  It is of note that the Applicant has also claimed to be suffering from tuberculosis of his lungs, and for which he has been receiving medical attention and treatments at the Tuen Mun Hospital in Hong Kong, as evidenced by copies of various medical appointments and reports submitted by him, but which he claims to fear that he may not be able to access or receive if refouled to India.

16.  On the basis of his submitted documentary evidence, there seems to be no reason to doubt the Applicant’s claim as regard his medical condition which appears to have been identified or manifested only in 2022 and some 2 years after his request to make a subsequent claim to the Director, and hence it was never raised before the Director for consideration of his request, and while it is unfortunate that it had taken a while for his present leave application to be heard by the Court, the fact remains that it has never been raised before the Director and hence cannot form any basis for his intended challenge of the Director’s decision to refuse his request to make a subsequent claim back in 2020.

17.  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 to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Restricted Proceedings Order

18.  Given the facts that the Applicant’s non-refoulement claim has already been finally and conclusively determined in the previous proceedings, ending with the order of the Appeal Committee of the Court of Final Appeal dated 6 January 2020, but that the Applicant is still trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before or invalid basis, I was mindful to consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) under Section 27 of the High Court Ordinance, Cap 4 against him, but as it turned out that the Director did already on 31 January 2022 obtain such an order against the Applicant from Coleman J under HCMP 1552/2021 [2022] HKCFI 194, and of which I shall rehearse the relevant terms here as a reminder to the Applicant:

(1)  No legal proceedings relating to any non-refoulement claim of the Applicant (named as Defendant under that Order) shall be instituted by him without leave of the CFI;

(2)  All legal proceedings relating to any non-refoulement claim of the Applicant previously instituted by him (including but not limited to HCAL 1577/2020) before the making of this Order shall not be continued by him without the leave of the CFI;

(3)  Any application by the Defendant for leave to institute or continue legal proceedings relating to any non-refoulement claim of the Defendant under Order 32A, rule 2 of the Rules of the High Court, Cap 4A, shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List;

(4)  No more than 1 application under Order 32A, rule 2 of the Rules of the High Court may be made by the Defendant within any period of 3 months;

(5)  This Order shall cease to have effect at the end of 5 years from the date of this order; and

(6)  A copy of this Order shall be sent to the High Court Registry, the District Court Registry, and the Small Claims Tribunal Registry.

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