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Nguya Adam Iddi 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 971
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL181/2024
Year2024
HCAL181/2024 NGUYA ADAM IDDI v. DIRECTOR OF IMMIGRATION

HCAL 181/2024

[2024] HKCFI 971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 181 OF 2024

BETWEEN
Nguya Adam Iddi 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. Leave to apply for Judicial Review be refused; and

2. 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 9 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 33-year-old national of Tanzania who arrived in Hong Kong on 28 June 2016 as a visitor with permission to remain as such up to 26 September 2016 when he did not depart and instead overstayed, and on 27 September 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Tanzania he would be harmed or killed by the local supporters of the ruling political party Chama Cha Mapinduzi (“CCM”) as he supported their rival Chadema Party (“CP”).

Previous Non-Refoulement Claim

3. By a Notice of Decision dated 27 October 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 found no substantial grounds for believing that he would be at risk of being harmed or killed by those local CCM supporters upon his return to Tanzania due to the absence of any past ill-treatment from them or any reliable evidence of any threats from the CCM people or of any reason for them to specifically target him or to have any adverse interest in him given that he was just an ordinary CP supporter without holding any official post in the party, that in any event 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 Tanzania with a large population of 52 million people spread across a vast territory of more than 947,000 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 where it would be difficult if not impossible for anyone to locate him.

5. The Applicant’s appeal against the Director’s decision was dismissed by the Board on 7 August 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 decision.

6. The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 22 October 2021 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 1943/2018 [2021] HKCFI 3172).

7. The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 21 January 2022 (CACV 484/2021 [2022] HKCA 136).

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 24 June 2022 ([2022] HKCA 901), and then by the Appeal Committee of the Court of Final Appeal on 6 September 2023 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9. Barely 2 weeks later on 21 September 2023 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that those CCM supporters are still looking for him and that he has some new problem that he fears of being harmed or killed 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...

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