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HCAL 2300/2024
[2025] HKCFI 536
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2300 OF 2024
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BETWEEN
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Sukhdev Singh |
Applicant |
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and |
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Director of Immigration |
Putative |
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Respondent |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
13 January 2025 |
| Date of Judgment: |
25 February 2025 |
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J U D G M E N T
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THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 11 October 2022 (“the Director’s Decision”) refusing his claim on the applicable risks[1], which had been determined in his previous application under HCAL 1784 of 2018 (“the previous application”).
2. The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process.
3. The applicant appeared before the Court on 13 January 2025 and admitted that he had made judicial review in respect of the Board’s Decision in the previous claim and this is the second application on the same facts and grounds.
The procedural history
4. The applicant, aged 32, is a national of India. He came to Hong Kong on 23 September 2014. He was denied entry by the Immigration Department. He lodged a non-refoulement claim. He claimed that if refouled, his life would be in danger because of a political dispute.
5. The Director dismissed his claim for the reason that it was not substantiated. He appealed to Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board found that his evidence was unreliable and state protection would be available to him. It dismissed his appeal.
6. His application for leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance on 30 June 2020. His appeal was also dismissed by the Court of Appeal on 5 March 2021. His Notice of Motion for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal and his application for leave to appeal at the Court of Final Appeal was dismissed on 17 March 2022.
7. By letter dated 8 June 2022, the applicant applied to the Director for making a subsequent claim for non-refoulement protection. By the Director’s Decision, the Director refused his application.
The subsequent claim application
8. Under section 37ZO of the Ordinance, he has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.
9. In support of his subsequent claim, the applicant submitted to the immigration officer supplementary materials such as his statement and articles. Having considered the additional materials, the immigration officer remarked:
“13. All the available information/evidence have been carefully considered. In gist, you are currently in fear that if you returned to India, you will be harmed or killed by your enemies due to the previous confrontations. It is considered that your fear of your enemies remains unchanged and the private dispute had already been submitted and thoroughly considered in your previous claim (see paragraph 9 above) which was not accepted as substantiated. Hence they do not constituted any change of circumstances warranting your making of a subsequent claim.”
10. The immigration officer had further found that his assertions of his family members being assaulted and his family house being burnt down were only speculations without acceptable evidence in support. Furthermore, even if such incidents were the facts, they do not constitute valid reasons in support of his subsequent claim because they are not evidence that he will be subjected to such harm if he returns to India. The immigration officer also found that state protection will be available and internal relocation will be viable if he returns to India.
11. For those reasons, the immigration officer was not satisfied with the applicant’s subsequent claim application satisfied the conditions under section 37ZO of the Ordinance and he refused his application for subsequent claim.
Application for leave to apply for judicial review of the Director’s Decision
12. The applicant filed Form 86 on 28 November 2024 for judicial review of the Director’s Decision.
13. The applicant has attached a statement to Form 86, in which he stated that his life is still in danger if he returns to India; that his family members were assaulted by his enemies and they had reported the matter to police, which took no action; that internal relocation will not be viable; that he is being detained in CIC for over one year and he asks for release. He had enclosed some documents written in Indian language without translation.
Discussion
14. The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact-finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
15. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that he relied on the same grounds of his previous claim. He further said that he had been detained for 1 year and his landlord had disposed of his properties in the premises he lived.
16. As to the grounds set out in paragraph 13, they are the same grounds covered by the immigration officer’s report. As to the documents, this Court does not understand the language and has no power to make investigation into them. The substance does not advance his application.
17. There is no valid reason to challenge the Director’s Decision.
18. The applicant fails to show that he has any realistic chance of success in his intended judicial review of the Director’s Decision.
19. I dismiss his application for leave to apply for judicial review of the Director’s Decision.
The RPO
20. Because of the applicant’s attempt to abuse the process, the Court has to protect its process to be abused again. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against him. See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.
21. RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Direcctor of Immigration [2021] HKCFI 1991, by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021, § 9 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129, § 25.
22. For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against him. The RPO was explained to the applicant before the hearing. When asked whether he had anything to say about the proposed RPO, he said he understood.
23. I am therefore satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong only. I shall therefore make the RPO in terms below:
(1) The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court and any appeal, including this Order, without leave of the Court of First Instance.
(2) All applications for leave under paragraph (1) shall be made to the Deputy High Court Judge K.W. Lung or in his absence, the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List.
(3) At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of her intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with the said application for leave.
(4) Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the Court written representations regarding the same.
(5) All applications made pursuant to this order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the Court should otherwise direct.
(6) If the Applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the Court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the Court for a decision as to whether they should be permitted to continue or should be dismissed.
(7) Notice of each decision by this Court or the designated Judge made pursuant to this order be given in writing to the Applicant and to each intended defendant or respondent named in the fresh proceedings.
(8) Whether or not any fresh proceedings are brought to the notice of the Court, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly.
(9) No more than one leave application under paragraph (1) may be made by the Applicant within any period of 3 months.
(10) No appeal shall lie from a decision of the Judge granting or refusing leave within this Order unless leave to appeal has been granted by the Court.
(11) This order shall cease to have effect at the end of 5 years from the date of this order.
(12) A copy of this Order shall be sent to the Registrar of the High Court.
DISPOSITION
24. The applicant’s application is dismissed.
25. RPO in terms of paragraph 23 be made against the applicant.
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(K.W. Lung)
Deputy High Court Judge
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The applicant appeared in person.
[1] The applicable risks are:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
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