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Mohammad Ziaul v Director Of Immigration [Decision On Leave Application]

Judgment Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date09 April 2024
Neutral Citation[2024] HKCFI 974
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL372/2024
Year2024
HCAL372/2024 MOHAMMAD ZIAUL v. DIRECTOR OF IMMIGRATION

HCAL 372/2024

[2024] HKCFI 974

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 372 OF 2024

BETWEEN
Mohammad Ziaul 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:

Leave to apply for judicial review 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 24 January 2024 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 36-year-old national of India who first arrived in Hong Kong on 17 November 2014 as a visitor with permission to remain as such up to 1 December 2014 when he did not depart and instead overstayed, and was arrested by police on 3 December 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle over a land dispute in his home village.

Previous Non-Refoulement Claim

3. By a Notice of Decision dated 23 August 2016 and a Notice of Further Decision dated 25 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 his uncle and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private land dispute between them 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 3.2 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 his uncle to locate him.

5. The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 16 October 2017 after he failed to attend the scheduled hearing without any evidence and upon finding no merits in his claim or his appeal, and...

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