Hussain Wajid v. Director of Immigration

HCAL 584/2020

[2020] HKCFI 2576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 584 of 2020

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 39-year old national of Pakistan who entered Hong Kong illegally on 16 May 2014 and was arrested by police on 21 May 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 Pakistan he would be harmed or killed by the local supporters of rival political party Azad Kashmir People Party (“AKPP”) in his home village.

2.The Applicant was born and raised in Village Bhimber, Azad Kashmir, Pakistan. After leaving school he worked in his family’s farm raising cattle, and became a supporter of the political party Pakistan Muslim League Nawaz (“PML(N)”) and had from time to time come into conflicts with the local supporters of rival AKPP in the village.

3.After one of such conflicts in December 2013 when he and his cousin were violently attacked by a group of AKPP supporters, the Applicant became fearful for his life and fled to Islamabad, and when he heard that those AKPP supporters were looking for him everywhere, he departed Pakistan on 12 May 2014 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 November 2015 and attended screening interview before an immigration officer with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 6 January 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the perceived risk of harm from those local AKPP supporters upon his return to Pakistan is likely to materialize due to the low frequency and intensity of his claimed past ill-treatment from them, that in the absence of any official involvement that state/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 187 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 or Islamabad where he had stayed before without incidents and where it would be difficult if not impossible for those local AKPP supporters to locate him.  

6.By a Notice of Further Decision dated 27 March 2017 the Director again rejected the Applicant’s claim upon considering additional facts submitted by him relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

7.The Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions, and for which he attended two oral hearings on 21 February 2017 and 25 May 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 4 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director. 

8.On 24 August 2017 the Applicant filed a Form 86 under HCAL 543/2017 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) Lack of legal representation for his appeal before the Board;

(2) Lack of language assistance to translate his NCF for his appeal before the Board; and

(3) Lack of fair hearing for his BOR 2 claim.  

9.On 19 June 2018 his application was refused by Deputy High Court Judge Woodcock upon hearing him in person and upon finding none of his grounds reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision or any failure on the part of the Adjudicator to apply high standards of fairness in assessing his claim, and that there was no realistic prospect of success in his intended application.

10.The Applicant then applied to the Court of Appeal for extension of time to appeal against the Judge’s decision, and on 5 October 2018 his application was refused by the Court of Appeal upon finding his application totally without merit or any prospect of success in his intended appeal, and on 17 December 2019 his application for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Final Appeal.

11.However, shortly thereafter the Applicant by letters dated 3 and 24 of December 2019 and of 23 January 2020 to the Director requested to make a subsequent non-refoulement claim that he still risks being harmed or killed by the AKPP supporters given that their party has become more powerful since his departure from Pakistan.

12.Upon considering additional documents submitted by the Applicant and conducting further interview with him with the assistance of an interpreter at the Castle Peak Bay Immigration Centre (“CIC”) where he was then being detained, the Director by a Notice of Decision dated 27 March 2020 refused to allow him to make a subsequent claim.

13.In his decision the Director found the basis of the Applicant’s subsequent claim of fear of harm from rival AKPP supporters essentially the same as his previous claim, and that there has been no significant change of circumstances since his previous claim had been determined by those proceedings stated above.       

14.On 9 April 2020 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of that decision of the Director, but no ground for seeking relief was given in his form, and in his supporting affirmation of the same date he merely claimed that the Director reached the wrong decision in assessing his claim without any proper inquiry or understanding, and invited the immigration officer to tour his country to see what real danger he would face if he was to return to Pakistan but without providing any details or particulars or elaboration how and why it was so, nor did he do so at the hearing of his application.

15.For a person who has previously made a torture claim or non-refoulement claim, Section 37ZO of the Ordinance provides limitation on subsequent claim by such a person 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.”

16.Accordingly, in his refusal of the Applicant’s request to make a subsequent claim, the Director did rely on, as he was entitled to, those facts found by the immigration officer and the Appeal Board in relation to his previous claim as set out in paragraph 9 of the decision, including the fact that the claimed risk of harm from those AKPP supporters was localized and that there were viable options for the Applicant to relocate to other area away from his home district upon his return to Pakistan, and that none of the basis now put forward by him as detailed in paragraph 11 of the decision constituted any change of circumstances that may justify the making of a subsequent claim. As such and in the absence of any error of law or procedural unfairness in his process before the Director or in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

17.Furthermore, the principle of res judicata clearly applies to the primary basis of the Applicant’s proposed subsequent claim, and that it seems to me an abuse of process for him to re-litigate his case by trying to raise what is essentially the same non-refoulement claim based on the same facts before the Director as before but disguised as a subsequent claim.        

18.In the premises and for these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of the Director’s decision not to allow his subsequent claim, and I accordingly refuse his leave application.

Dated the 26^th day of November 2020.

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