AHMAR KHAN v. DIRECTOR OF IMMIGRATION

HCAL 308/2019

[2023] HKCFI 1855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 308 OF 2019

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 3 December 2018 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous torture claim raised by his mother for him when he was a minor had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”), while his subsequent non-refoulement claim brought under the Unified Screening Mechanism (“USM”) on the remaining applicable grounds other than torture risk was also withdrawn upon his own request and that he had been repatriated to his home country.

Relevant Factual Background  

2.  The Applicant is a 28-year-old national of India who was first brought by his mother to Hong Kong on 1 May 2009 at the age of 14 as visitors when they subsequently overstayed and that his mother then raised a torture claim on the basis that if they returned to India they would be harmed or killed by their neighbours in their home district in Kolkata over their disputes with her husband who had subsequently left the country to come to Hong Kong, and fearing of further threats and harassments from their neighbours, his mother therefore also brought the Applicant and his younger brother to Hong Kong to seek protection.

Previous Non-refoulement Claim

3.  By a Notice of Decision dated 27 January 2012 the Director rejected their torture claim upon taking into account of all the circumstances of their case and found no evidence of any torture or ill-treatment had been inflicted on the Applicant’s mother or her family including the Applicant that could amount to torture, that in any event any such risk of harm from their neighbours arising from their disputes with his father were private matters without any official involvement that state or police protection would be available to the Applicant and his family 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’s mother as an able-bodied adult with working experience to move with the Applicant and his brother to other part of the country away from their home district in large cities where it would be difficult if not impossible for their neighbours to locate them.

4.  On 9 February 2012 the Applicant’s mother lodged an appeal against the Director’s decision which was dismissed by the Board on 4 May 2012 upon finding no merits in her claim or her appeal, and that it also confirmed the Director’s decision.

5.  On 5 November 2013 when he was no longer a minor at the age of almost 19, the Applicant by his lawyer lodged a non-refoulement claim on the same basis as before under the Unified Screening Mechanism (“USM”) on all the applicable grounds other than torture risk, but before his non-refoulement claim could be dealt with by the Director, the Applicant by a written representation dated 24 May 2016 requested to withdraw his claim as it was safe for him to return to his home country, which request was acknowledged and accepted by the Director on 27 May 2016, and 3 weeks later on 21 June 2016 the Applicant was repatriated to India.

Request To Make Subsequent Claim

6.  Some 2 years later in late 2018 the Applicant sneaked back into Hong Kong, and by a written representation dated 16 October 2018 to the Director he requested to re-open his previous non-refoulement claim as upon returning to India in 2016, he failed to mitigate his family’s feud with the neighbours in his home district, and found that he still faces the same threats as before.

7.  However, as Section 37ZF (3) of the Immigration Ordinance, Cap. 115 stipulates that once a claimant has left Hong Kong after withdrawing his non-refoulement claim that it must not be re-opened, the Director therefore treated the Applicant’s request as one to make a subsequent claim.

8.  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.”

9.  Accordingly, on 29 October 2018 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 by a letter dated 26 November 2018 just stating that he cannot go back to his home country as his life is still in danger there.

10.  By a Notice of Decision dated 3 December 2018 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.

11.  On 1 February 2019 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 his supporting affirmation filed on the same day in which he just stated that the decision is unfair and unreasonable but without providing any details or particulars or elaboration as to how it is so, nor was he able to do so at the hearing of his application other that he has since married a local resident in Hong Kong and is waiting for the Director’s decision on his application for a  dependent visa.

12.  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 given the correct and unchallenged findings of both the Director and the Board in his previous claim of the availability of state/police protection to negate any such risk arising from what were essentially some private disputes between his family and their neighbours without any state or official involvement, 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