GOPAL v. DIRECTOR OF IMMIGRATION

HCAL 499/2024

[2024] HKCFI 1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 499 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 (“Director”) dated 5 March 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all applicable grounds while his appeal to the Torture Claims Appeal Board (“Board”) was subsequently withdrawn at his own request whereupon he was repatriated to his home country in India on 20 February 2021, but some 2 years later he sneaked back into Hong Kong to raise his request to make a subsequent claim.

Previous Non-Refoulement Claim    

2.  The Applicant is a 28-year-old national of India who first arrived in Hong Kong on 21 March 2015 as a visitor with permission to remain as such up to 4 April 2015 when he did not depart and instead overstayed, and was arrested by police on 9 April 2015.  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 the father of his former girlfriend who objected to their relationship.         

3.  By a Notice of Decision dated 14 November 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 former girlfriend’s father and followers upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of them to seriously harm or kill him other than to press him to end his relationship with his former girlfriend, that in any event it was a private personal dispute between the Applicant and his former girlfriend’s father only 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 adult with working experience to move to other part of the country away from his home district in large cities such as New Delhi where it would be difficult if not impossible for anyone to locate him.

5.  The Applicant’s appeal against the Director’s decision was subsequently withdrawn by the Applicant at his own request in writing dated 15 May 2019 in which he stated that it was safe for him to return to India, and accordingly the Board on 26 March 2019 directed that his appeal be withdrawn and confirmed the Director’s decision as final, whereupon the Applicant was repatriated to India on 9 April 2019.

Request To Make Subsequent Claim

6.  Less than 2 years later on 15 January 2021 the Applicant sneaked back into Hong Kong, and upon his subsequent arrest by the police on 2 February 2021, he was again repatriated back to India on 20 February 2021.

7.  However, on 22 September 2023 the Applicant again sneaked back into Hong Kong, and 4 days later on 26 September 2023 he surrendered to the Immigration Department and requested to make a subsequent claim on the basis that upon returning to India, he was subsequently involved in a fatal traffic accident for which he was blamed by the victim’s family who had threatened to kill him in revenge for the victim’s death.

8.  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.”

9.  Accordingly, on 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 via his lawyer from the Pilot Scheme Office for Provision of Public-funded Legal Assistance for Non-refoulement Claimants (“PSO”) with the following material and information in support of his subsequent claim:

(a)  Upon his last repatriation to India in February 2021, the Applicant married a wife and raised a family with a daughter in his home district;

(b)  One day in January 2022 while he was driving his car along a highway, a motorcycle travelling in the wrong direction collided with his car that the motorcyclist died in the spot, while the Applicant suffered only minor injuries;

(c)  A subsequent enquiry held by the local magistrate court exonerated the Applicant of any responsibility or liability in the accident;

(d)  Some 4 or 5 months later one day while he was driving his car to work, the Applicant was stopped by 6 or 7 men headed by the brother of the accident victim who blamed the Applicant for his brother’s death, and proceeded to attack him with wooden sticks and other weapons that the Applicant lost consciousness and collapsed onto the ground, and before they fled from the scene, those men also damaged his car;

(e)  The Applicant was subsequently taken to a local hospital where he received medical treatments for some 6 months before he was eventually discharged from the hospital;

(f)  Upon returning home, the victim’s brother one day came to warn the Applicant that next time he would not be so lucky to survive their attack;

(g)  Thereafter the Applicant became fearful for his life and moved with his family to Simla to take shelter in his uncle’s home;

(h)  One day he was out to the town by himself, and upon his return he was informed by his wife that several men had come looking for him while he was out, and when they could not find him, those men became furious and damaged some household items of his uncle’s house;

(i)  The Applicant suspected that those men were sent by the victim’s family to kill him, and so he moved his family to Haridwar to hide in a friend’s place, but as he felt it was no longer safe to remain in India, and so in September 2023 he departed India for China via Thailand, and from there he sneaked into Hong Kong, and on  26 September 2023 he surrendered to the Immigration Department and raised his request to make a subsequent claim on the basis that if he returned to India he fears he would be harmed or killed by the family of the traffic accident victim.           

10.  By a Notice of Decision dated 5 March 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 as to the private and personal nature of the claimed risk without any state or official involvement, and that the Applicant 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 the Director in the previous claim of the availability of both state/police protection as well as reasonable internal relocation within his home country away from his home district to similarly negate or minimize any such risk that may arise in his proposed subsequent claim.

11.  On 20 March 2024 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and he put forth various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(a)  That the Director failed to adequately appreciate or assign proper importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his claim;

(b)  That the immigration officer rejected the Applicant’s claim without conducting a proper inquiry especially the significant geographical distance between the place where his problems persist and the location where the decision was made; and

(c)  That the Director erred in assessing the Applicant’s request to make a subsequent claim under the USM.

12.  These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to his case or how the Director or the immigration officer had erred in the decision, or how did the Director fail to conduct a proper inquiry into his case including the assessment of internal relocation, or what relevancy is the concept of State Acquiescence to his case when on the factual basis even on his own case that the claimed risk of his subsequent claim even if real arose from some private and personal dispute between him and the family of the victim of a traffic accident as to his civil liability, of which he has already been exonerated by a local court, without any state or official involvement at all.

13.  As such, and given the unchallenged findings by the Director in his previous claim of the availability of state/police protection and reasonable internal relocation to the Applicant upon his return to India, and which the Director has also found, correctly in my view, to similarly apply to the Applicant’s proposed subsequent claim in which the alleged risk of harm even if real also arose from some private and personal dispute between him and the family of the traffic accident victim without any state or official involvement will similarly be negated by such available alternatives upon his return to his home country, I do not find any of these grounds reasonably arguable 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 for subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore 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