Naresh Kumar v. Director of Immigration

HCAL 1055/2021

[2023] HKCFI 3317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1055 OF 2021

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 / 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 2 June 2021 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 India who first arrived in Hong Kong on 30 March 2013 as a visitor with permission to remain as such up to 13 April 2013 when he did not depart and instead overstayed, and was arrested by police some 3 months later on 20 July 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 India he would be harmed or killed by his father’s former business partner Munshi Ram over their business dispute in his home district.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 2 October 2015 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 (“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”).

4.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 risk of harm from Munshi Ram upon his return to India is real and foreseeable due to the low intensity and frequency of past ill-treatment from Munshi Ram, that there is no evidence of any real intention of Munshi Ram to seriously harm or kill the Applicant, that in any event it was a private business dispute between Munshi Ram and the Applicant’s father 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 young adult with working experience to move to other part of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for Munshi Ram to locate him.

5.On 15 October 2015 the Applicant lodged an appeal to the Board against the Director’s decision, but before it could be dealt with by the Board, the Applicant on 14 March 2016 applied to withdraw his appeal, which was accepted by the Board on 15 March 2016 that his non-refoulement claim had been finally disposed of, whereupon he was subsequently on 1 April 2016 repatriated back to India.

Request To Make Subsequent Claim

6.However, more than 4 years later on 26 September 2020 the Applicant sneaked back into Hong Kong, and on 30 November 2020 he surrendered to the Immigration Department and requested to make a subsequent claim on the basis that he still fears of being harmed or killed by the same former business partner of his father Munshi Ram with whom he also has a land dispute in his home district in India.

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 4 March 2021 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, but despite repeated extensions of time and reminders for him to do so, the Applicant never submitted any further evidence or information in support of his request as required by the Director.

9.By a Notice of Decision dated 2 June 2021 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same in nature as that of his previous claim, and that he failed to provide any or 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 26 July 2021 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 in his supporting affirmation filed on the same day to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge.

11.Moreover, the Applicant subsequently on 26 September 2023 filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved that he now wants to return to his home country.

12.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, as 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 as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review given the fact that any risk arising from his alleged land dispute with the same Munshi Ram in the proposed subsequent claim even if real will be similarly negated by the availability of state protection and internal relocation as found by the Director in his previous claim which as noted above was never challenged by the Applicant, and in view of his latest confirmation of no more problem for him to return to his home country, I accordingly dismiss his leave application.

Dated the 28^th day of December 2023

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