Md Wahid v. Director of Immigration

HCAL 1754/2023

[2024] HKCFI 221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1754 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave for the applicant to apply for Judicial Review of the Director’s Decision be granted; and

2.  The applicant must take out the originating summons within 14 days after service of this Order on him in accordance with Order 53, rule 5 of the RHC.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 September 2023 of the Director’s Decision (“the Director’s Decision”) rejecting his application for a subsequent claim of the previous claim in HCAL 1560 of 2018 (“the Previous Claim”) for non-refoulement protection.

2.The applicant appeared before the Court on 4 December 2023.

The previous claim

3.The applicant, aged 44, is a national of Bangladesh. He stayed in Hong Kong illegally since 2005.  He raised torture claim in 2011 and was rejected whereupon he was removed and and refouled to Bangladesh.  He entered Hong Kong again through China in 2013 and was arrested by police.  On 25 June 2013, he was referred to the Immigration Department for investigation.  He had made another non-refoulement claim.

4.In his previous claim, he claimed that if he were to be returned to Bangladesh, he would be harmed or killed by his ex-business partners and a gang of Awami League associated robbers.

5.In his statements given to the Director, he said that in 2005 he had witnessed a case of robbery at the shop where he worked.  He was identified by the robbers, who met him on the street.  They attacked him without saying anything, as a result of which, he was admitted in hospital for two weeks.  Later, he received death threats from the robbers, demanding him to leave the country. He then came to Hong Kong.

6.The Director considered his application under the applicable risks[1] and rejected his previous claim.  He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

7.The Board dismissed his appeal for the reasons that his evidence was unreliable, and even if his evidence were accepted, his application would not succeed because state protection and internal relocation were available for him.

8.He applied to the High Court for judicial review.  The Court of the First Instance refused leave for him to apply for judicial review of the Board’s Decision.

9.He appealed to the Court of Appeal and failed. He finally applied for leave to appeal to the Court of Final Appeal.  The Court of Final Appeal dismissed his application

10.By letter dated 28 April 2023, the applicant applied to the Director for a subsequent claim.  By the Director’s Decision, the Director rejected his application.

The subsequent claim

11.The applicant applied for subsequent claim under section 37 ZO of the Ordinance, which provides:

“Limitation on subsequent claim

(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.

(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.”

12.The applicant, as requested, provided the immigration officer with additional information in support of his application for the subsequent claim.  Having considered the additional information, the immigration officer said in paragraph 19 of the Director’s Decision:

“All the available information/evidence provided has been carefully considered. It is noted that you did not mention anything about the fear of your ex-business partners, Wahidul, Shiplu and Aminul due to the money dispute and a gang of AL associated robbers as you witnessed them robbing a garage. We take it that you do not have any fresh information or update to provide regarding your previous alleged fear. In you current Request, you mentioned Aminul who held a good position at AL (see paragraphs 11(f) & 12(f) above) while you did not indicate whether he was your ex-business partner. As your dispute with Aminul mentioned in your current Request is different from your previous claim, Aminul mentioned in your current Request is taken to be your new enemy. In gist, you are now in fear that if you are returned to Bangladesh, you will be harmed or killed by AL people and the developers due to the land dispute. Also, you will be harmed or killed by AL people due to your political involvement in BNP. Besides, you are currently in fear that there is a false charge against you. These fears had not been mentioned in your previous claim and are taken to be your new risk of harm in your Request.”

13.It is clear that the immigration realized that the applicant had made a new claim, which is different from his previous claim.

14.The immigration officer then considered the additional information, including the first information report, complaint letter, warrant of arrest, charge sheet, letters from the advocate, copy of medical report and the 3 photographs as set out in a table under paragraph 18 of the Director’s Decision.  She further considered the country of origin information (“COI”) in relation to state protection and came to the conclusion in paragraph 29:

“In light of the above, it is not accepted that: there has been a significant change of circumstances since your previous claim as finally determined; and the change, if any, when taken together with the materials previously submitted in support of your previous claim, would give the subsequent claim a realistic prospect of success. Your Request for making a subsequent claim under section 37ZO of the Immigration Ordinance, Cap. 115 is therefore not made, i.e. the Director is not satisfied that you have complied with the requirements set out in section 37ZO(2) of the Immigration Ordinance, Cap. 115.”

DISCUSSION

15.The role of this Court is supervisory, meaning that it ensures that the immigration complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said he understands the Director’s Decision.  However, he argued that he is now relying on the new circumstances different from his previous claim.  In a fight, one of the people of his enemies was killed and his family, including himself are charged with murder.  If he returns to Bangladesh, he will be arrested and beaten up in the same situation as his brother who had returned and was beaten up as well.  He asked the Court not to impose a restrictive proceedings order upon him.

17.The immigration officer seemed not to dispute with the truth of the new information.  She found that even if the facts are true, they do not support the applicant’s subsequent claim and state protection will alleviate his risk.

18.As the immigration officer agreed that the additional information is the new facts that took place after the previous claim, her findings of the facts and opinions are subject to appeal to the Board, same as other first time application to the Director for non-refoulement protection under the United Screening Mechanism system and the Ordinance.  The applicant’s right of appeal to the Board is provided under the Ordinance and should not be denied. For many other applications for subsequent claims, the applicants rely on the same facts as the previous claim.  Since the facts in the previous claims had already gone through the screening procedures and had been appealed to the Board, the Ordinance does not provide for appeal to the Board.  See section 37ZR of the Ordinance[2]. This is a different situation.

19.The immigration officer has failed to take into consideration that the new circumstances should be subject to the appeal procedures under the Ordinance.  This is an error in law and procedurally unfair to the applicant.

20.The applicant succeeds to show that he has realistic prospect of success in his proposed judicial review against the Director’s Decision.

CONCLUSION

21.I grant leave to the applicant to apply for judicial review of the Director’s Decision.  The applicant must take out the originating summons within 14 days after service of this Order on him in accordance with Order 53, rule 5 of the RHC.

Dated the 1^st day of February 2024

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

[1] The applicable risks refer to:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

[2] 37ZR.

Appeal

A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—

(a) section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);

(b) section 37ZI(1)(b) (decision rejecting a torture claim); or

(c) section 37ZL(1) (revocation decision made by an immigration officer).