Khan Muhammad Suleman v. Director of Immigration
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HCAL 745/2024 [2024] HKCFI 1833 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 745 OF 2024
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review be 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 8 April 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all applicable grounds and that his appeal to the Torture Claims Appeal Board (“Board”) had subsequently been withdrawn and dismissed at his own request after he expressed his wish to return to his home country. 2.The Applicant is a 45-year-old national of Pakistan who first entered Hong Kong illegally on 6 July 2007 and was arrested by police more than 1 year later on 9 July 2008 and then repatriated to Pakistan on 25 June 2010, but less than 2 years later on 7 May 2012 he sneaked back into Hong Kong, and upon his arrest by police and was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain local supporters of the political party Pakistan Peoples Party (“PPP”) as he supported their rival Muslim Conference (“MC”). Previous Non-Refoulement Claim 3.By a Notice of Decision dated 27 April 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 found no substantial grounds for believing that the risk of harm from those local PPP supporters upon his return to Pakistan is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm or kill him or any political reason for them to specifically target him for harm given the fact that he was just an ordinary MC supporter without any official post in the party, that in any even in the absence of 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 the country away from his home district in large cities such as Karachi or Lahore where it would be difficult if not impossible for anyone to locate him. 5.The Applicant’s appeal against the Director’s decision was as noted subsequently withdrawn and dismissed by the Board on 20 May 2016 upon his own request in writing whereupon he was repatriated to Pakistan on 12 September 2016. Request To Make Subsequent Claim 6.Some 3 years later on 1 November 2019 the Applicant again sneaked back into Hong Kong, and more than 4 years later on 14 November 2023 he surrendered to the Immigration Department and requested to make a subsequent claim on the basis that upon his return to Pakistan in 2016, he switched his support to another political party Pakistan Tehreek-e-Insaf (“PTI”), but one day in 2018 while he was attending a PTI campaign together with his fellow supporters, they were attacked by a group of rival supporters of Pakistan Muslim League (N) (“PML(N)”) that he suffered injuries that required medical treatment in the hospital, and thereafter he became fearful for his life that he left Pakistan again on 25 October 2019 for China, and from there he later sneaked into Hong Kong and subsequently raised his request to make a subsequent claim for protection. 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:
8.Accordingly, on 19 February 2024 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 via his lawyer from Duty Lawyer Service (“DLS”). 9.By a Notice of Decision dated 8 April 2024 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 sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined in view of the unchallenged finding by the Director in his previous claim that in the absence of any official involvement in his claimed risk of harm from the local PML(N) supporters albeit a different political party that such risk will similarly be negated by the availability of state protection and reasonable internal relocation to the Applicant upon his refoulement to Pakistan that it is not accepted that there has been a significant change of circumstances or that such change when taken together with the material previously submitted in support of his previous would give his subsequent claim any realistic prospect of success. 10.On 10 May 2024 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 in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 11.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 correctly found by the Director that although his claimed risk of harm is said to have come from a different political party than that in his previous claim that even if real it is a localized one that it will similarly be negated by state protection and reasonable internal relocation available to the Applicant upon his refoulement to his home country, I am not satisfied that there is any prospect of success in his intended application for judicial review, and accordingly I refuse his leave application. Dated the 23rd day of July 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
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