HCAL 2670/2024
[2025] HKCFI 1643
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2670 OF 2024
BETWEEN |
| | Ahmed Raja Naseem | Applicant |
| | and | |
| | Director of Immigration | Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
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 (“the Director”) dated 12 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 32-year-old national of Pakistan who previously entered Hong Kong illegally on 20 June 2016, and upon his arrest by the police he then raised a non-refoulement claim to the Immigration department on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle and his sons over a land dispute between his uncle and his father in his home village in District Jhelum, Punjab, Pakistan.
Previous Non-Refoulement Claim
3. By a Notice of Decision dated 28 October 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 assessed the level of risk of harm from his uncle and cousins upon his return to Pakistan as low 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 other than to deter him from assisting his father from persistently raising the land dispute, that in any event it was a private land dispute between his uncle and his father within their family 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 Pakistan with a large population of 201 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 where it would be difficult if not impossible for his uncle or cousins to locate him.
5. The Applicant’s subsequent appeal against the Director’s decision was also dismissed by the Board on 25 April 2017 after hearing him in evidence and submissions and upon finding no merits in his claim or appeal that the credibility of his claim was rejected, and that it also confirmed the Director’s decision.
6. The Applicant never raised any legal challenge to the courts of the Board’s decision, and was subsequently on 19 May 2017 repatriated to Pakistan.
Request To Make Subsequent Claim
7. However, some 7 years later in July 2024 the Applicant sneaked back into Hong Kong, and upon his arrest by the police on 2 August 2024, he in writing to the Immigration Department requested to make a subsequent claim on the basis that he faces death threats from his girlfriend’s father in his home village in Pakistan who objected to their relationship.
8. 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.”
9. Accordingly, the Director by a letter dated 21 August 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”) and then also attended a screening interview by an immigration officer with legal representation from the Duty Lawyer Service (“DLS”), in which he provided the following information and evidence in support of his request:
(a) Upon returning to his home village in May 2017, he managed to resolve his dispute with his uncle that he was able to get on with his life by working as a rickshaw driver in his home village to make his living;
(b) In early 2023 he started dating a girl from a neighboring village who was from an Afghanistan family immigrated to Pakistan some 25 years ago;
(c) But later in 2023 when his parents proposed for their marriage to his girlfriend’s family, her father was displeased and rejected the proposal, and warned the Applicant to stay away from his daughter;
(d) In January 2024 the Applicant and his girlfriend decided to elope and hid in a friend’s place in his home village to make their own arrangements for their marriage, during which he received a telephone call from his mother that his father had been admitted to hospital for some serious illness, and so he left his girlfriend to rush to hospital to see his father;
(e) In the same evening he was informed by his friend that his girlfriend’s father and other men came to his friend’s place and killed his girlfriend, and that they were looking for him to kill him too;
(f) The Applicant did not seek any police assistance, and instead he fled to Lahore and then to Islamabad, and when he heard that his girlfriend’s father was still looking for him everywhere, he felt it was no longer safe to remain in Pakistan, and so on 26 July 2024 he departed for China, and from there he later sneaked into Hong Kong to again seek non-refoulement protection.
10. By a Notice of Decision dated 12 December 2024 the Director refused to allow the Applicant to make a subsequent claim upon finding material inconsistencies and implausibility in his evidence which damaged the reliability of his alleged new risk and doubted the credibility of his subsequent claim, that even if his account were true that on the factual basis of his own case that the basis thereof was essentially the same in its private nature as that of his previous claim without any official involvement, and that the Applicant failed to provide sufficient evidence 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 given the similarly private nature of the personal dispute between him and his girlfriend’s father without any official involvement that state protection and internal relocation alternatives as found by both the Director and the Board in his previous claim which were never challenged by any legal process will also be available to the Applicant upon his return to Pakistan to similarly negate any risk that may arise from his intended subsequent claim.
11. On 30 December 2024 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for his intended challenge:
(1) That the Director failed to adequately acknowledge the Pakistani government’s acquiescence in the harm faced by the Applicant which undermined the legitimacy of the rejection of the Applicant’s request to make a subsequent claim;
(2) That the immigration officer’s rejection of the Applicant’s subsequent claim raises concerns about the lack of a thorough investigation into the Applicant’s situation and in particularly given the distance from the officer’s location to the area where the Applicant faces threats;
(3) That the Director made erroneous evaluation of the Applicant’s request for protection under the United Nations Subcommittee on the Prevention of Torture that the decision failed to align with the facts and circumstances of the Applicant’s case.
12. These are however just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to his case, or in what way did the Director or the immigration officer err in the decision or that it was unfair or unreasonable, or what evidence is there from the Applicant that the Pakistani government’s acquiescence was involved in his proposed subsequent claim, and the fact that the Applicant was able to attend another screening interview together with his lawyer before the immigration officer during which he had had all the opportunity and legal support to make his representation for his request to make a subsequent claim to the Director. As such, and as none of his such assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant in his Form or affirmation or at the hearing of his application, I do not find any of them reasonably arguable for his intended challenge.
13. 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 refuse to grant leave and accordingly dismiss his application.
Dated the 24th day of April 2025
| | (Chung Lai Fan, Christine)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
| | | | |
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
| | Sent to the Applicant on 24 April 2025
Ahmed Raja Naseem
Applicant’s ref. no.:
Nil. | | Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24 April 2025
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 5215/16/11/154/P1200
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1909/16;
L/M (31605) in ImmD RA 7/37/C (Formerly RBCZ 155/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1