Alam Ghufran v. Director of Immigration

HCAL 311/2025

[2025] HKCFI 2157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 311 OF 2025

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;

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 (“the Director”) dated 5 November 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claims 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 39-year-old national of India who previously arrived in Hong Kong on 11 February 2008 as a visitor with permission to remain as such up to 25 February 2008 when did not depart and instead overstayed, and was arrested by police on 27 February 2008. After he was referred to the Immigration Department for investigation, the Applicant raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s father who objected to their relationship. He was subsequently released on recognizance pending the determination of his claim.

Previous Non-Refoulement Claim

3.The Applicant was born and raised as a Muslim in Kolkata, West Bengal, India. After leaving school he first worked as a salesman and later ran his own business in his home district.

4.In 2006 he started dating a Hindu girl from the same district, but later when he proposed to marry his girlfriend, her father Sunny refused his proposal due to different religions between them, and threatened the Applicant to end the relationship, but when the Applicant failed to heed his demand, one day in October 2007 Sunny together with other men beat him severely, and threatened him that next time he would be killed if he still failed to end the relationship.

5.As the Applicant became fearful for his life, he fled to Howrah to hide in a friend’s place, and on 26 January 2008 he departed India for Hong Kong and then for China, and on 11 February 2008 when he returned to Hong Kong as a visitor with permission to remain as such up to 25 February 2008, he did not depart and instead overstayed, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 May 2016 and attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 5 July 2016 and a Notice of Further Decision dated 11 July 2017 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”).

7.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his girlfriend’s father Sunny upon his return to India as low due to the low intensity and frequency of past ill-treatment from him, that his problem with Sunny was a private dispute between just the 2 of them only 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 2.9 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 the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for Sunny or anyone to locate him.

8.The Applicant then lodged an appeal to the Board against the Director’s decisions, and for which he attended an oral hearing on 24 October 2017 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 November 2017 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence given to the Board from those given by him earlier to the Director that it doubted his claim of fear of harm from his girlfriend’s father Sunny who objected to their relationship that caused him to leave the country to come to Hong Kong to seek protection, that even if his account of events prior to his departure were true that it is not accepted that Sunny would still have any adverse interest in him after all these years when he had had no further contact with his girlfriend since 2007, and that in any event it was a private dispute between him and Sunny only without any official involvement that state protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.

10.The Applicant never sought any legal challenge of the Board’s decision by way of judicial review, and was subsequently repatriated to India some 2 years later on 31 October 2019.

Request To Make Subsequent Claim

11.However, more than 4 years later on 9 April 2024 the Applicant again departed India for China, and from there he later entered Hong Kong illegally on 1 May 2024, and was subsequently arrested by police on 24 September 2024. After he was referred to the Immigration Department for investigation, the Applicant on 29 September 2024 in writing requested to make a subsequent claim on the basis that he still fears of being harmed or killed by his girlfriend’s father Sunny if refouled to India.

12.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.”

13.Accordingly, the Director by a letter dated 7 October 2024 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”) in which he just repeated his claim as before and that his girlfriend’s father Sunny has still threatened to kill him after his return to India in 2019.

14.By a Notice of Decision dated 5 November 2024 Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was exactly 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, 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 given the unchallenged findings by both the Director and the Board in his previous claim of the availability of state protection and internal relocation alternatives to the Applicant upon his return to India to similarly negate the same risk that may arise from his intended subsequent claim.

15.On 3 February 2025 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 relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he does not want to return to India as his life is still in danger there but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

16.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 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, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 29^th day of May 2025

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