MAKHTOOM WASEEM v. DIRECTOR OF IMMIGRATION

HCAL 75/2022

[2022] HKCFI 1835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 75 of 2022

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 11 January 2022 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 30-year-old national of Pakistan who entered Hong Kong illegally on 26 August 2013 and was arrested by police on 28 August 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle and sons over their land dispute with the Applicant’s family in his home village in Pakistan.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 26 November 2015 and a Notice of Further Decision dated 6 March 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 uncle and sons upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private land dispute between their two families 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 Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 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 Pakistan away from his home district in large cities such as Karachi 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 20 April 2017 after hearing submissions from his lawyer from the Duty Lawyer Service (“DLS”) and upon finding no merits in his claim or his appeal, and that it also confirmed the Director’s decisions, whereupon the Applicant was repatriated back to Pakistan on 12 May 2017.

Request To Make Subsequent Claim

6.  More than 4 years later on 14 October 2021 the Applicant again entered Hong Kong illegally from Mainland China, and on 1 November 2021 he surrendered to the Immigration Department and made a request to raise a subsequent claim on the basis that upon returning to his home in Pakistan, he still received threats from his uncle over the land dispute and was on one occasion attacked and wounded by some unknown persons whom he suspects were sent by his uncle, and so he had to save his life by fleeing from Pakistan for Hong Kong again to seek protection.

7.  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.”

8.  Accordingly, on 18 November 2021 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 on 29 December 2021 with additional information.

9.  By a Notice of Decision dated 11 January 2022 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.

10.  On 20 January 2022 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, in which he stated as follows:

“ … I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.”

11.  These are however all just some vague and bare assertions of the Applicant without any details or particulars or elaboration as to how they would apply to his case, or in what way would they be relevant to his claim which on the factual basis of his own case at the highest was just a private family land dispute without any official involvement that I fail to see how extra-judicial killings would be relevant to his case or how his claim would engage the BOR 2 ground in its limited scope, or in what way was the Director’s decision unfair or unreasonable. As such and as he was also unable to do so either at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge.     

12.  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.

13.  In the premises, and as I am not satisfied that there is any prospect of success in his intended application for judicial review, I therefore 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