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Naushad Ahmed v Director Of Immigration [Decision On Leave Application]

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date09 April 2024
Neutral Citation[2024] HKCFI 973
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL327/2024
Year2024
HCAL327/2024 NAUSHAD AHMED v. DIRECTOR OF IMMIGRATION

HCAL 327/2024

[2024] HKCFI 973

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 327 OF 2024

BETWEEN
Naushad Ahmed 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 22 January 2024 in 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 34-year-old national of India who first arrived in Hong Kong on 7 December 2014 as a visitor with permission to remain as such up to 21 December 2014 when he did not depart and instead overstayed, and on 30 December 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his creditors over his outstanding debts and/or by the police for being involved in a fight with one of his creditors.

Previous Non-Refoulement Claim

3. By a Notice of Decision dated 15 December 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 creditors or the police upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any adverse interest of the police in him and that he was able to leave the country without problem, that indeed if any police action against him that he would be entitled to due process and legal representation to defend such action under the current legal system in India, that his problems with his creditors were private monetary disputes 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 Mumbai where it would be difficult if not impossible for his creditors to locate him.

5. The Applicant’s appeal...

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