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Chowdhury Abdul Kader v Director Of Immigration [Decision On Leave Application]

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date27 May 2022
Neutral Citation[2022] HKCFI 1563
Year2022
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
Judgement NumberHCAL222/2022
HCAL222/2022 CHOWDHURY ABDUL KADER v. DIRECTOR OF IMMIGRATION

HCAL 222/2022

[2022] HKCFI 1563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 222 of 2022

BETWEEN
Chowdhury Abdul Kader 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:

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 the Director of Immigration dated 30 December 2021 be refused;

2. The application for leave to apply for Judicial Review be dismissed; and

3. A Restricted Proceedings Order (RPO) be made against the Applicant.

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 30 December 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim 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 52-year-old national of Bangladesh who entered Hong Kong illegally on 22 January 2014 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by local supporters of the political party Awami League (“AL”) as he supported their rival Bangladesh Nationalist Party (“BNP”).

Previous Non-Refoulement Claim

3. By a Notice of Decision dated 15 July 2016 and a Notice of Further Decision dated 13 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”).

4. 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 those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that being just an ordinary supporter of BNP without any official post in the party that it was not accepted that there would be any reason for him to be specifically targeted by those AL supporters in what were common conflicts between supporters of rival political parties, that in any event since he left the country that it is doubtful that there would still be any adverse interest in him after all these years, that 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 Bangladesh with a large population of 168 million people spread across a vast territory of more than 148,000 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 Bangladesh away from his home district in large cities such as Khulna where it would be difficult if not impossible for those AL supporters to locate him.

5. The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 2 February 2018 after hearing him in evidence and submissions and upon finding no merits in his claim or his 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 this Court on 1 June 2020 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 202/2018 [2020] HKCFI 777).

7. The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 19 November 2020 (CACV 166/2020 [2020] HKCA 934).

8. The Applicant’s notice of motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 1 February 2021 ([2021] HKCA 116), and then by the Appeal Committee of the Court of Final Appeal on 10 September 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9. One month later on 8 October 2021 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that the AL people are still looking for him and as they are still the ruling party in Bangladesh that he fears that he will not receive any protection from the police or authorities if refouled to his home country.

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...

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