Hussain Majid v. Director of Immigration

HCAL 796/2021

[2021] HKCFI 3122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 796 of 2021

BETWEEN

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:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“Director”) dated 20 May 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his earlier claim had been rejected by both the Director and the Torture Claims Appeal Board (“Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.The Applicant is a 36-year-old national of Pakistan who previously entered Hong Kong illegally on 5 December 2015 and subsequently surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his uncle and cousins over some land dispute in his home district in Pakistan,       

3.By a Notice of Decision dated 30 December 2016 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 cousins upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family 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 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 or cousins to locate him.

5.The Applicant’s subsequent appeal against the Director’s decision was also dismissed by the Board on 13 July 2018 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.On 1 August 2018 the Applicant filed a Form 86 under HCAL 1523/2018 for leave to apply for judicial review of the Board’s decision, but before it was considered by the Court, the Applicant on 28 December 2018 applied in writing to withdraw his leave application as he wanted to return to his home country as soon as possible, which was granted by this Court on 4 January 2019 as withdrawn, and on 25 February 2019 the Applicant left Hong Kong to return to Pakistan.

7.Almost two years later on 10 January 2021 the Applicant sneaked back into Hong Kong, and on 2 February 2021 he in writing to the Immigration Department requested to make a subsequent claim on the basis that upon his return to Pakistan in 2019, he had tried to resolve his dispute with his uncle and cousins but was unsuccessful, and hence he fears that he will be harmed or killed by them if he remained in Pakistan, nor will he be able to receive proper medical attention for his heart problem in his home country.   

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 9 March 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 March 2021.

10.By a Notice of Decision dated 20 May 2021 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis of his land dispute with his uncle and  cousins 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, while his intention to seek medical treatment for his heart problem in Hong Kong cannot be accepted as any proper basis for a subsequent claim.

11.On 31 May 2021 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review not only of this decision of the Director but also the earlier decision for rejecting his previous claim and the subsequent decision by the Board in dismissing the appeal of his previous claim, and put forth the following grounds for his intended challenge:

(a)   That the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(b)   That the Director failed to take into account of the fact that the Applicant was tortured at the behest of and in full collusion of the police and state law enforcement agencies that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence of which the Director had failed to give sufficient weight before reaching the decision;

(c)   That the Director failed to consider or give sufficient weight to those relevant COI which supported the Applicant’s aversions that the police in Pakistan would not be able to protect that it was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(d)   That the Director failed to attain high standard of fairness required by the Wednesbury test in the decision by failing to accept the Applicant’s argument that corruption and incompetency of the administration in Pakistan is still a very serious problem of which various human rights organizations have compiled reports which stated testament to the Applicant’s assertions and therefore the decision should be considered unreasonable in the scope of public law;

(e)   That the Adjudicator failed to make sufficient enquiry before finalizing its determination that the Applicant had failed to provide credible evidence to prove the material elements in his claim; and

(f)    That the Adjudicator had failed to give sufficient chance to the Applicant to arrange relevant evidence in support of his non-refoulement claim as well as his appeal.      

12.These grounds however appear all to me to have been just copied from some applications of other claimants for non-refoulement claim but of entirely different facts with none relevant to the Applicant’s request to make a subsequent claim which even on the basis of his own case at the highest, and as found by both the Director and the Board in their previous decisions, to be a private family land dispute, and that in any event these grounds are just bare assertions of the Applicant without any details or particulars or elaboration as to how they apply to his case or how the Director had erred in his decision, or in what way would state acquiescence or police corruption be relevant to his claim, or how did the Director fail to apply high standards of fairness in his determination of his request to make a subsequent claim, or how did the Director fail to make proper or sufficient enquiry in assessing his such request. None of these assertions were presented or elaborated with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.  

13.As for his proposed challenge against the earlier decisions of the Director and the Board regarding his previous claim, even ignoring the reality that he would have been seriously out of time to do so, the fact is that he did thereafter depart Hong Kong in 2019 which would have rendered his claim as withdrawn and cannot be re-opened, as stipulated by Section 37ZF(2) of the Immigration Ordinance, and hence there is simply no legal basis for his intended challenge of those previous decisions either.     

14.In the premises and having considered the present 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 Director’s consideration and assessment of the Applicant’s request to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse his leave application.

15.Given the facts that the Applicant’s non-refoulement claim had already been finally and conclusively determined in the previous proceedings, but that he now appears to be trying to re-litigate his case by making this subsequent claim based on essentially the same facts and basis as before, I was minded to consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against him, but since he had never brought any legal challenge or appeal in his previous proceedings, and as he did thereafter depart Hong Kong to return to Pakistan, I am prepared to give him the benefit of the doubt that he did upon his return to Pakistan try to resolve his land dispute with his uncle and cousins but to no avail, and as I am unable to conclude with certainty that this attempt of his to make a subsequent claim in the circumstances would amount to an abuse of process, I shall therefore refrain from making any RPO against him on this occasion.  

Dated the 19^th day of October 2021

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