NAUSHAD AHMED v. DIRECTOR OF IMMIGRATION

HCAL 327/2024

[2024] HKCFI 973

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 327 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 22 January 2024 in 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 34-year-old national of India who first arrived in Hong Kong on 7 December 2014 as a visitor with permission to remain as such up to 21 December 2014 when he did not depart and instead overstayed, and on 30 December 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditors over his outstanding debts and/or by the police for being involved in a fight with one of his creditors.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 15 December 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 creditors or the police upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any adverse interest of the police in him and that he was able to leave the country without problem, that indeed if any police action against him that he would be entitled to due process and legal representation to defend such action under the current legal system in India, that his problems with his creditors were private monetary disputes 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 Mumbai where it would be difficult if not impossible for his creditors to locate him.

5.  The Applicant’s appeal against the Director’s decision was then dismissed by the Board on 22 February 2019 after hearing him in evidence and submissions and upon finding no merits in his claim or his appeal, and that it also confirmed the Director’s decision.

6.  The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 6 June 2022 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 620/2019 [2022] HKCFI 1676).

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

Request To Make Subsequent Claim

8.  On 4 July 2023 the Applicant entered Hong Kong illegally and surrendered to the Immigration Department on 25 September 2023 when he requested to make a subsequent claim on the basis that he is still unable to repay his debts as incurred in his previous claim and hence he still fears of being harmed or killed by his creditors if refouled to his home country.

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 15 November 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”) in which he claimed that upon being repatriated to India he was able to persuade his creditors for more time to repay his debts by borrowing another loan from them to invest in a friend’s business but which turned out to be a fraud that he lost all his money, and when he was unable to repay his various loans he was against threatened and attacked by his creditors that he had to leave his home country to save his life by coming to Hong Kong to seek protection again.

11.  By a Notice of Decision dated 22 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 given the unchallenged findings by both the Director and the Board in his previous claim that in the absence of any official involvement in such personal monetary dispute in his subsequent claim that state protection and reasonable internal relocation alternatives would similarly be available to the Applicant upon his return to India.

12.  On 15 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 or in his supporting affirmation filed on the same day in which he just repeated his claim as before of fear of harm from his creditors but without putting forth any proper grounds for his intended challenge, nor was he able to do so at the hearing of his application.

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 to make a subsequent claim.

14.  As such, and as I agree with the Director‘s finding that the stated basis of the Applicant’s subsequent claim was essentially the same as that of his previous claim, and that his alleged change when taken together with his previous material would not give his subsequent claim any realistic prospect of success given the unchallenged finding in his previous claim of the availability of state protection and internal relocation alternatives to negate any risk arising from such subsequent claim that I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review. Accordingly I refuse to grant leave and therefore 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