Ali Taricul v. Director of Immigration

HCAL 468/2024

[2024] HKCFI 1286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 468 of 2024

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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 9 February 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 754 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

2.The applicant appeared before the Court on 15 April 2024. He submitted that his claim is not the same as his previous claim. He relies on the paddy field dispute. He fears that he may be harmed if he returns to his country.

3.The Court received a letter with a date chopped 16 April 2024 from the applicant. In this letter, the applicant asked the case be adjourned for 4 months for him to apply for legal aid or instruct his private lawyer because he does not understand the law. Having considered the reasons, the Court decides not to adjourn the matter as it had been heard. The applicant did not raise this request during the hearing. The Court further considers the issues in this case and is of the view that this subsequent claim application has no merit. The Court decides not to impose a Restrict Proceedings Order on the applicant this time.

The procedural history

4.The applicant is a national of Bangladesh. He was arrested for remaining in Hong Kong without the consent of the Director of the Immigration Department (“the Director”). He was charged, convicted and sentenced to 15 months’ imprisonment. He lodged his non-refoulement claim on all applicable risks[1].

5.His previous claim is based upon his fear that, if refouled, he would be harmed or killed by the local Awami League (“AL”) leader Salim because he supported the Bangladesh Nationalist Party (“BNP”).

6.By Notice of Decision dated 27 October 2016, the Director rejected his claim as they were not substantiated.

7.He appealed to the Board. However, before the Board heard his case, he applied to the Board to withdraw his appeal. On 28 February 2017, the Board dismissed his appeal and confirmed the Director’s decisions in the Notice of Decision.

8.By way of affirmation filed on 19 July 2018, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision.

9.On 23 July 2018, the Court of the First Instance made an Order that leave to apply for judicial review was withdrawn.

10.On 12 November 2018, he was repatriated to Bangladesh after he had expressed that he was willing to return.

11.On 17 October 2023, he sneaked into Hong Kong from the Mainland legally and was arrested by police. The police referred him to the Immigration Department.

12.On 4 November 2023, he made the subsequent claim application.

13.By the Director’s Decision, the Director refused his application.

The subsequent claim application

14.Under section 37ZO of the Ordinance, he has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.

15.The applicant submitted a statement in support of his subsequent claim application, in which he stated the reasons below:

(1)  after he returned to Bangladesh in 2018, his enemies of AL in his previous claim had asked him to attend the AL rallies and he refused;

(2)  one day towards the end of 2022, he had a dispute with a fellow village called Rezaul over the irrigation of the paddy field. They fought each other. Later, Rezaul and his 5 brothers came and threatened that they would kill him. One evening in mid-2023, Rezaul and his 5 brothers and one called Arab Mallik came to his shop where they attacked him with a stick and he fell unconscious. He was taken to a clinic for treatment where he had stayed for 2 days;

(3)  he had stayed in his friend’s house for a few months before his friend made the arrangements for him to come to Hong Kong again; and

(4)  he learned from another friend that his enemies had occupied his paddy field, vandalized his home and expelled his parents from their village.

16.The immigration officer was aware of the new grounds as raised by the applicant in support of his subsequent claim application. The immigration officer refused the applicant’s application for the reasons below:

(1)  the issues in his previous claim had been considered and rejected by the Board;

(2)  his dispute with Rezaul was over the paddy field. There is no evidence that Rezaul or his people intended to kill him. That he was attacked and he had to stay in the clinic do not amount to torture or BOR 3 risk;

(3)  his information from his friend is hearsay evidence, which the immigration officer did not attach much weight;

(4)  however, even accepting his evidence as he alleged, there is no evidence to support his subsequent claim because there is no evidence to show that he will be subjected to any real or genuine risk of harm by his enemies if he returns to Bangladesh; and

(5)  the Board had also considered state protection and internal relocation be available to the applicant in the previous claim. These reliefs also apply to his subsequent claim.

The application for leave to apply for judicial review application

17.The applicant has filed Form 86 dated 14 March 2024 to apply for leave for judicial review of the Director’s Decision.

18.The applicant has filed an affirmation, in which he said that if he returns to his country, his life will be in danger.

Discussion

19.The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact-finding power. 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).

20.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had relied upon the reasons in his previous claim. He said that he also has new ground of the paddy field dispute in support of his subsequent claim application.

21.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

22.For the reasons below, I refuse to grant leave to the applicant for judicial review of the Director’s Decision:

(1)  the Director is correct to say that the applicant cannot rely on the reasons in support of his previous claim. This is clearly in contravention of section 37ZO of the Ordinance;

(2)  as to the new ground of the dispute of the paddy field between him and Rezaul, the Director had assessed the evidence and found that even if the applicant’s allegation on the facts of his claim were accepted, the applicant simply failed to show that he has any real or genuine risk of harm from his enemies if he returns to Bangladesh;

(3)  the Director also found that there was no evidence to show that the state’s government was involved in the paddy field disputes, therefore state protection will be available to the applicant;

(4)  furthermore, the Board in the previous claim had found that internal relocation is a viable option open to the applicant. The Director had also taken this issue into consideration when he considered the applicant’s application; and

(5)  the immigration officer therefore came to the conclusion:

“ 18. To conclude, it is not accepted that there has been a significant change of circumstances since your previous claim was 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….”

(6)  The applicant has raised no valid reason to challenge the Director’s findings.

(7)  I can see no procedural unfairness for this case as the Director made his decision even on the assumption that the applicant’s alleged facts were accepted. There is no error of law or Wednesbury unreasonableness in the finding of the facts or the decisions by the Director.

23.There is no realistic prospect of success in the applicant’s intended judicial review of the Director’s Decision.

24.Accordingly, I dismiss the applicant’s application.

Dated the 23^rd day of May 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