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HCAL 1388/2022
[2023] HKCFI 338
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1388 of 2022
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Jarnail Singh |
Applicant |
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Director of Immigration |
Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be granted.
Observations for the Applicant:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Decision of the Director of Immigration dated 14 January 2021 (the “Director’s Decision”) refusing his subsequent claim of HCAL 446 of 2017 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).
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 9 January 2023.
The procedural history
4. The applicant is a national of India. He came to Hong Kong as a visitor on 16 April 2015. He overstayed and surrendered to the Immigration Department. By way of a written representation on 11 August 2015, he lodged a non-refoulement claim on the applicable grounds of the BOR 2 risk[1], the BOR 3 risk[2], the Persecution risk[3] and the Torture risk[4].
5. By Notice of Decision dated 11 August 2016 (“the Director’s First Decision”), the Director refused his claim on the Torture risk, the BOR 3 risk and the Persecution risk. By notice of Further Decision dated 1 June 2017 (“the Director’s Second Decision”), the Director refused his claim on the BOR 2 risk. The 2 Director’s Decisions are collectively called (“the Director’s Decisions”)
6. The applicant appealed the Director’s Decisions to the Torture Claims Appeal Board (“the Board”). The Board, by the Board’s Decision dated 14 July 2017, dismissed his appeal on all applicable grounds of his claim.
7. His application for leave for judicial review of the Board’s Decision was dismissed by the Court of the First Instance by its Order dated 23 April 2018 (“the Court’s Order”).
8. His appeal against the Court’s Order was dismissed by the Court of Appeal on 25 July 2018.
9. His Notice of Motion for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 18 June 2020.
10. He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 11 August 2020.
11. By the Director’s Decision, the Director refused his application.
The subsequent claim application
12. The applicant’s previous claim was based on the fears that, if he returned to India, he would be harmed or even killed by his uncle because he had a personal land dispute with him.
13. The Director found that his previous claim was not substantiated.
14. The applicant lodged an appeal to the Board against the Director’s Decisions. The Board found that the applicant’s evidence was not credible. Apart from it, the Board also found that the applicant failed to establish the risks he claimed and he had no real risk if he returned to India.
15. 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.
16. In support of his subsequent claim, the applicant submitted to the immigration officer his statement together with some documents. In the materials submitted to the immigration officer, the applicant alleged that his uncle had discovered his involvement in support of Khalistan Movement, which is a movement to fight for the rights of Sikh people in India. Most of the incidents were protests and rallies against the government. His uncle had officially informed some influential political people who are against the Khalistan Movement and is attempting to file a FIR against him for treason and he will be arrested if refouled and will not be given a fair trial. His wife told him that he is now on the “look-out list”, a target of the police. He believes that if he returns to India, he will be falsely implicated in criminal cases, detained illegally and eliminated in fake police encounter, like other people in his similar situation. The applicant had submitted a letter from the Shiromani Akai Dal Party dated 13 December 2017. The immigration officer cast doubts on the authenticity of this letter, taking the view that the letter is only to recommend the immigration authorities to grant him permission to stay.
17. The immigration at paragraph 26 of the Director’s Decision said:
“Having carefully considered all the information and evidence available, including the findings in relation to your previous claim, it is not accepted that there has been a significant change of circumstances since your previous claim was finally determined. Even if assuming that there has been a significant change of circumstances in the country condition in India, such change, when taken together with the materials previously submitted in support of your previous claim, would not give the subsequent claim a realistic prospect of success. The Request is therefore refused. You may not make a subsequent claim for non-refoulement protection under the USM.”
The application for leave to apply for judicial review
18. The applicant has filed an affirmation in which he did not set out any specific ground. But he had, in a separate statement, explained that he did not receive the Director’s Decision. That is the reason why he had delayed his application for judicial review.
DISCUSSION
19. 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).
20. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he understood the Director’s reasons for rejecting his application. He further submitted that his life is still in danger in India.
21. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
22. From the reasons given by the immigration officer for his conclusion that the applicant has failed to establish a change of circumstances, which taken together with his previous claim, will not give him a realistic chance of success in his subsequent claim, it is clear that the immigration officer has not given any reason for his conclusion. In the additional materials, the applicant has put forth that his uncle had made a false claim against him on the Khalistan Movement and he will be arrested for the false charge if he returns to India. He is now on the “look-out list”. The immigration officer has not addressed any of these materials in the Director’s Decision.
23. No doubt, the immigration officer has a duty to set out his reasons in support of his conclusion. The Court of Final Appeal in Oriental Daily Publisher Limited v Commissioner for Television and Entertainment Licensing Authority (1997-98) I HKCFAR 279, 25 November 1998, pages 16-17 held that a tribunal has to give adequate reasons for its decision and said at pages 16-17:
“Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question…. … First, the reasons given should show that the Tribunal has addressed the substantial issues before it and show why the Tribunal has come to its decision. There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered…. … Secondly, ,… … why the Tribunal has come to such conclusions…. … Thirdly, the reasons may not require great elaboration and they may be brief. It is only when they are defective in substance that they should be considered inadequate. Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly. … … Fourthly, where a point of law is raised the point has to be decided… … Reasons for a decision on a point of law should usually set out the findings of fact, the point of law at issue and the process of reasoning leading to the conclusion.”
24. I find that the immigration officer has failed to give adequate reasons in support of his conclusion, which amounts to an error of the law and is Wednesbury unreasonable. The applicant has a realistic chance of success in his intended application for leave for judicial review of the Director’s Decision.
DISPOSITION
25. I grant leave to the applicant to apply for judicial review of the Director’s Decision. The applicant has to issue the originating summons within 14 days after this Order in accordance with Order 53, rule 5 of the Rules of the High Court.
26. Accordingly, I refrain from making any RPO against the applicant on this occasion.
Dated the 10th day of February 2023.
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(C.S. FUNG (Ms))
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 10 February 2023
Jarnail Singh
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10 February 2023
Director of Immigration
Putative Respondent’s ref. no.:
L/M (21589) in ImmD RA 7/37/C
(formerly RBCZ/13173/15 & RBCZ/9001738/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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