MOHAMMAD ZIAUL v. DIRECTOR OF IMMIGRATION

HCAL 372/2024

[2024] HKCFI 974

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 372 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 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 24 January 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 36-year-old national of India who first arrived in Hong Kong on 17 November 2014 as a visitor with permission to remain as such up to 1 December 2014 when he did not depart and instead overstayed, and was arrested by police on 3 December 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 paternal uncle over a land dispute in his home village.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 23 August 2016 and a Notice of Further Decision dated 25 July 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 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 uncle and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private land 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 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 Delhi where it would be difficult if not impossible for his uncle to locate him.

5.  The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 16 October 2017 after he failed to attend the scheduled hearing without any evidence and upon finding no merits in his claim or his 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 this Court on 13 April 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 812/2017 [2018] HKCFI 748).

7.  The Applicant did not bring any appeal against the Court’s decision, and was subsequently repatriated to India on 4 March 2021.

Request To Make Subsequent Claim

8.  More than 2 years later on 31 October 2023 the Applicant sneaked back into Hong Kong and was arrested by police on the same day, whereupon he then in writing to the Immigration Department requested to make a subsequent claim on the basis that after returning to his home village in March 2021, he found that his uncle still coveted his land and continued to make death threats against him, and so in 2022 he again fled from his home village for Chandigarh, but later when some unknown men came to him to demand that he transferred the land to his uncle or else he would be killed, the Applicant realized that it was not safe to remain in India, and so he left the country again on 24 October 2023 for China, and from there he later sneaked back to Hong Kong to seek protection.

9.  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.”

10.  Accordingly, on 6 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”).

11.  By a Notice of Decision dated 24 January 2024 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 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.

12.  On 26 February 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 that his life would be in danger if refouled to his home country but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application when he just produced a written statement in which he just repeated his claim as before and some bare assertion that his cousin has been killed due to her political activities that he fears that he would face the same risk if refouled to his home country but which did not appear to have been raised by him to the Director in his request to make a subsequent claim and which therefore cannot form any proper or reasonably arguable basis for his intended challenge of the Director’s decision.

13.  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 given the unchallenged finding by both the Director and the Board in his previous claim of the availability of state protection and reasonable internal relocation to negate any risk from such claim and which would similarly be available as regard his subsequent claim upon his return to India, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave 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