Mohammed Badruzaman v. Director of Immigration

HCAL 1968/2020

[2022] HKCFI 473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1968 of 2020

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

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 27 August 2020 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director on all applicable grounds under the Unified Screening Mechanism (“USM”), while his subsequent appeal/petition to the Torture Claims Appeal Board (“the Board”) had also been withdrawn at his own request upon his written confirmation that it would be safe for him to return to his home country in India.   

2.The Applicant is a 40-year-old national of India who last arrived in Hong Kong on 22 February 2008 as a visitor with permission to remain up to 29 February 2008 when he did not depart and instead overstayed, and was arrested by police on 10 March 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his former business partner over some monetary dispute, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.

Previous Non-Refoulement Claim       

3.The Applicant was born and raised in Kolkata, West Bengal, India where he used to run a garment business by himself until 2005 when his friend Rakesh joined as a partner after injecting his share of capital contribution into the business.

4.However, the business did not fare well and was eventually closed down in 2007, but which led to a dispute between the two partners when Rakesh demanded for the return of his capital but was refused by the Applicant as all the capital of the business had been spent, and after the Applicant had been assaulted by Rakesh and his men on two occasions during which he suffered serious injuries which required medical treatments at the local hospital, and when Rakesh continued to make threats against him, the Applicant felt it was no longer safe to remain in India, and so on 22 February 2008 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 9 April 2018 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service (“DLS”).  

5.By a Notice of Decision dated 23 May 2018 the Director rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

6.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 Rakesh or his followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private monetary 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 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 India away from his home district in large cities such as Mumbai where it would be difficult if not impossible for Rakesh or his men to locate him.

7.On 28 May 2018 the Applicant lodged his appeal/petition to the Board against the Director’s decision, but before his appeal could be heard, the Applicant on 14 May 2019 wrote to the Board and requested to withdraw his appeal/petition as it would be safe for him to return to his home country, and that he understood that by withdrawing his appeal/petition that the Director’s decision shall remain in force and that his withdrawal would be treated as the final disposal of his non-refoulement claim before the Board.

8.By a letter dated 22 May 2019 the Board acceded to the Applicant’s request and directed that his appeal/petition be withdrawn upon being satisfied that his request was freely sought, that he understood the consequence of the withdrawal as he had considered it safe to return to India, and that it also confirmed the Director’s decision and that no further action would be taken in respect of the Applicant’s appeal/petition. 

Request To Make Subsequent Claim

9.The Applicant did not take any step to challenge either decision of the Director or the Board by way of any leave application to the court for judicial review of those decisions, but on 15 January 2020 he wrote to the Immigration Department and requested to make a subsequent claim on the basis that the threat that he had in his home country still persists that he fears of being killed if refouled to India.   

10.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.”

11.Accordingly, on 27 February 2020 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, but despite being provided with information to seek public-funded legal representation and a reminder on 5 June 2020, the Applicant failed to make any response or to provide any further evidence to the Director in support of his request.

12.By a Notice of Decision dated 27 August 2020 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 any 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.

13.On 30 September 2020 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, in which he recited various references to the general principles and authorities on assessment and determination of non-refoulement claims, and then stated that “the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s application without properly access the credibility of the Applicant” but without providing any particulars or elaborations as to how the Adjudicator, or for that matter the Director, did so in the process of either his previous claim or of his request to make a subsequent claim, nor did he put forth any other ground for his intended challenge.

14.Furthermore, on 13 January 2022 the Applicant filed an affirmation requesting to withdraw his application for judicial review in that he wants to return to India which would be safe for him to do so as he no longer has any problem in his home country.    

15.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 for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review given his failure to provide any information or evidence in support of his request, and in view of his latest confirmation that it would be safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 15^th day of February 2022.

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