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HCAL 2867/2018
[2021] HKCFI 3175
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2867 of 2018
BETWEEN
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Mirza Muhammad Ramzan Baig |
Applicant |
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Director of Immigration |
Putative
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 P. Li :
1. The Notice of Application for leave to apply for Judicial Review be amended by substituting Torture Claims Appeal Board with Director of Immigration as the Putative Respondent; and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Background
1. On 13/8/2008, the Applicant lodged a non-refoulement claim. The basis of his claim was that he had a land dispute with Tahir, Saqib and others (“T & S”). He would be harmed or killed by “T & S” if he returned to Pakistan. His claim was assessed under the USM. [1]
2. On 9/10/2014, the Director dismissed his claim. He concluded that it was a private land dispute which did not involve any persecution. The injuries were not serious and did not amount to a ‘minimum level of severity’. [2]
3. On 20/10/2014, he filed an appeal to the TCAB. During the oral hearing, he informed the adjudicator that he would like to withdraw his appeal and return to Pakistan. His appeal was dismissed accordingly on 20/4/2015.[3]
4. On 2/9/2015, he filed a leave application for judicial review of the decisions of the TCAB and the Director. He was out of time for about 1½ months. This court rejected his reasons for re-opening the claim. This court refused his leave application on 18/4/2016 (HCAL 180/2015). It transpired that he had not left Hong Kong since then.[4]
5. On 10/9/2018, the Applicant applied to the Director to re-open his non-refoulement claim. The Director treated this as a subsequent claim. The Director asked him to supply further information to show that there was significant change of circumstances in accordance with s. 37ZO (2), Immigration Ordinance, Cap 115.
6. The applicant filed 3 documents on 9/10/2018 as follows:
a. A FIR[5] dated 8/3/2006;
b. A FIR dated 28/8/2018; and
c. A copy of the registered owner of the land.
7. The Director rejected his application for a subsequent claim on 3/12/2018 for the following reasons:[6]
a. The incident mentioned in the FIR dated 8/3/2006 was part of the basis of his previous claim. He had mentioned that in his NCF dated 25/3/2014.
b. The FIR dated 28/8/2018 was about a shooting incident occurred on 26/8/2015. The FIR recorded that “T & S” shot at the applicant’s father as they knew Muhammad Ramzan (the applicant) had returned from overseas. The time of the report was 0230 pm on 21/2/2013. The Director pointed out that the applicant’s father could not report an incident on 21/2/2013 which allegedly occurred on 26/8/2015. Secondly, the applicant had never returned to Pakistan since he came to Hong Kong in 2006. The Director concluded that it was an unreliable document.
c. The Director noted that the fear in the subsequent claim arose from the same land dispute with “T & S” in 2006. There was no significant change of circumstances. Taking all available information into consideration, the subsequent claim would not have a realistic prospect of success.
Application for judicial review
8. The applicant filed a leave application for judicial review on 13/12/2018. It concerned the Director’s decision on 3/12/2018. In his affirmation, he did not specify any error in the Director’s decision. In the Form 86, the applicant named the TCAB as the putative respondent. This is obviously wrong as the TCAB was not involved. This Court thus amend the Form 86 by substituting the TCAB with the Director of Immigration as the putative respondent.
9. Under s. 37ZO (2), the Applicant must provide sufficient evidence to satisfy an immigration officer that, there had been a significant change of circumstances since the withdrawal. In addition, this change together with the material already submitted, would support a realistic prospect of success in the subsequent claim.
10. The Director disallowed the Applicant’s subsequent claim on 3/12/2018. The reasons are set out above. The Director acted in accordance with the above subsection. There is no error of law and procedure.
11. The Director had considered the documents submitted by the applicant. I agree with the findings of the Director. The FIR dated 28/8/2018 is unreliable. The FIR dated 8/3/2006 had already been considered in the previous claim. There was no significant change of circumstances.
12. In my view, the decision of the Director was reasonable. There is no merit in the intended judicial review. I refuse the leave application.
Dated 28th day of October 2021
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(Mike Mak) |
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for Registrar, High Court |
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 / the Applicant’s solicitors on
28 October 2021:
Mirza Muhammad Ramzan Baig
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 28 October 2021
Director of Immigration
Putative Respondent’s ref. no.:
L/M (18803) in ImmD RA 7/37/C
(formerly 9002859/17 &
RBCZ 1487/08)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Decision of the Director dated 3/12/2018, §2.
[2] HCAL 180/2015, Form CALL-1 dated 18/4/2016, §7—10.
[3] HCAL 180/2015, Form CALL-1 dated 18/4/2016, §11.
[4] HCAL 180/2015, Form CALL-1 dated 18/4/2016, §§12—22.
[5] First information report.
[6] Decision of the Director dated 3/12/2018, §§3—13.
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