MANDEEP SINGH v. DIRECTOR OF IMMIGRATION

HCAL 488/2024

[2024] HKCFI 1233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 488 OF 2024

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;

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 26 February 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 India who first arrived in Hong Kong in late August 2014 and overstayed his visiting visa, and after subsequently surrendering to the Immigration Department on 7 January 2015, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the family of his friend Rajesh in revenge as they blamed him for Rajesh’s death in a traffic accident.

Previous Non-Refoulement Claim          

3.  By a Notice of Decision dated 21 May 2018 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 his perceived fear is real and foreseeable upon his return to India due to the low intensity and frequency of past ill-treatment from Rajesh’s family, that it was a private personal 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 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young 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 Rajesh’s family to locate him.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 12 June 2020 which also confirmed the Director’s decision after hearing the Applicant in evidence and submissions and upon finding material inconsistencies discrepancies and implausibility therein that it doubted the credibility of his claim of fear of revenge from the family of his deceased friend Rajesh that caused him to leave his country to come to Hong Kong to seek protection, and that in any event even if such claim were true or that the claimed risk were real that it arose from some private personal dispute between them without any official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move away from his home district to other parts of the country without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.

6.  On 26 June 2020 the Applicant filed an application for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form 86, and in his supporting affirmation he merely repeated his claim as before that he did not want to return to his home country as his problem still existed but without putting forward any proper ground for his intended challenge of the Board’s decision.

7.  However, before his application could be dealt with by the Court, the Applicant on 8 October 2020 filed an affirmation requesting to “cancel” his application because everything was fine that he was ready to return to his home country, whereupon he was repatriated by the Immigration Department to India on 3 November 2020, and accordingly his leave application was subsequently dismissed by this Court on 21 January 2021 (HCAL 1317/2020 [2021] HKCFI 185).

Request To Make Subsequent Claim

8.  Some 2 years later in 2023 the Applicant sneaked back into Hong Kong, and was arrested by police on 7 November 2023 whereupon he in writing to the Immigration Department requested to make a subsequent claim on the basis that after withdrawing his leave application for judicial review in October 2020 in the belief that his family had made peace with Rajesh’s family that it would be safe for him to return to India, and upon subsequently being so repatriated in November 2020 and returning to his home village in Rajpura, Patiala, Punjab, he went about with his life as before without incidents, but one day in late 2023 Rajesh’s younger brother got drunk and again blamed the Applicant for Rajesh’s death, and proceeded to attack him by punching and kicking him that caused him to suffer cuts and bruises all over his body, and after another attack by Rajesh’s brother and his friends less than 2 weeks later but which he managed to escape without serious injuries, the Applicant became fearful that there would be more such revenge attacks by Rajesh’s family, and so he departed India again to come to Hong Kong to seek non-refoulement protection.       

9.  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.”

10.  Accordingly, on 29 November 2023 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did by letters dated 29 December 2023 and 2 February 2024.

11.  By a Notice of Decision dated 26 February 2024 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim of fear of harm in revenge from Rajesh’s family over Rajesh’s accidental death, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a 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 unchallenged findings by both the Director and the Board in his previous claim of the availability of both state protection and reasonable internal relocation upon his return to India to negate any such risk even if it still remains real as alleged by the Applicant for his subsequent claim.

12.  On 18 March 2024 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he just repeated his claim as before and that he is not satisfied with the Director’s decision as incorrect but without putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

13.  As such and in the absence of any error of law or irrationality or procedural unfairness in the process of his request to the Director or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.    

14.  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 which even on the factual basis of his own case is essentially the same as in his previous claim as correctly found by the Director, and given also the correct and unchallenged assessment by both the Director and the Board in his previous claim that the risk of harm from Rajesh’s family even if real is a localized one and that it is not unreasonable or unsafe for the Applicant to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection or to make a subsequent claim on the same factual basis, I am therefore not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave application.

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

Form CALL-1