Seikh Nizamuddin Alias Sk Nizamuddin v. Director of Immigration

HCAL 1011/2025

[2025] HKCFI 2679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1011 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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Director of Immigration dated 11 December 2024 be refused; and

2.  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 11 December 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 34-year-old national of India who first arrived in Hong Kong on 15 June 2014 as a visitor with permission to remain as such up to 29 June 2014 when he did not depart and instead overstayed, and on 31 July 2014 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by his uncle over their monetary dispute.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 6 May 2016 and a Notice of Further Decision dated 27 June 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”).

4.In his decision 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 uncle upon his return to India as low due to the low intensity and frequency of past ill-treatment from his uncle, that there was no evidence of any real intention of his uncle to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between the 2 of them only within their family 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 young 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 his uncle to locate him.

5.The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 23 November 2017 after hearing him in evidence and submissions and upon finding no merits in his claim or appeal, and that it also confirmed the Director’s decisions.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by Campbell-Moffat J on 19 December 2018 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 1035/2017 [2018] HKCFI 2486).

7.The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 11 August 2020 (CAMP 269/2019 [2020] HKCA 594).

8.The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decisions was also dismissed by the Court of Appeal on 13 November 2020 ([2020] HKCA 862), and then by the Appeal Committee of the Court of Final Appeal on 8 October 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A, whereupon the Applicant was repatriated to India on 21 June 2022.

Request To Make Subsequent Claim

9.However, some 2 years later on 25 April 2024 the Applicant arrived in Hong Kong under a different identity and subsequently overstayed, and was arrested by police on 7 October 2024, and after being referred to the Immigration Department for investigation, the Applicant in writing requested to make a subsequent claim on the basis of the following statement:

“I am from India. My life was in danger in India that why I came to Hong Kong for my live safety. I requested to you to make me a refugee in Hong Kong.”

10.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.”

11.Accordingly, the Director by a letter dated 31 October 2024 by hand to the Applicant then detained at Lai Chi Kok Reception Centre required him to provide further information and evidence in writing in support of his request within 14 days, but despite repeated requests the Applicant never responded or replied to the Director’s request or provided any further information in support of his request to make a subsequent claim.

12.By a Notice of Decision dated 11 December 2024 Director refused to allow the Applicant to make a subsequent claim upon his failure to provide any evidence or information in writing to satisfy  an immigration officer that there has been any 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.

13.On 28 April 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 seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge of the Director’s decision.

14.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.As the last day of the 3-month period for him to file his Form 86 fell on 11 March 2025, the Applicant was therefore some 7 weeks late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

16.In the Applicant’s case, a delay of 7 weeks must be considered as substantial and inordinate, for which he explained at the hearing of his application that he had been detained by the Immigration Department and was only released sometime in March 2025 when it was only then that he was able to provide further information to the Immigration Department as requested.

17.While it is accepted that the Applicant was at the material time being detained by the Immigration Department, given the fact that he was then still able to make his request in writing to the Director to make his subsequent claim, and that assistances were also available from the welfare officers stationed there, I am unable to see why the Applicant could not have at least provided some information as to what kind of risk that he claimed to be facing in India before his departure so as to comply with the Director’s request.  As such I am not satisfied that the Applicant has any justification for his serious delay.

18.As for the merits, if any, of his intended application, as noted above that the Applicant failed to put forward any proper ground for his intended challenge in his Form or supporting affirmation, nor was he able to do so at the hearing of his application, and that he also conceded that it was his own failure to comply with the Director’s request to provide evidence or information in support of his request to make a subsequent claim until March 2025, which was some 3 months after the Director’s decision.

19.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 given the Applicant’s failure to provide any supporting information or evidence for his request, I am therefore not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 3^rd day of July 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