GOPAL v. DIRECTOR OF IMMIGRATION

CACV 332/2024, [2025] HKCA 34

On Appeal From [2024] HKCFI 1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 332 OF 2024

(ON APPEAL FROM HCAL NO 499 OF 2024)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

1.  This is an appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) on 6 August 2024 (“the Order”) refusing to grant leave the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 5 March 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection.

BACKGROUND

1.  The Applicant is a repeated non-refoulement claimant. He is a national of India. He first arrived in Hong Kong on 21 March 2015 as a visitor. He did not depart upon the expiry of his limit to stay. He was arrested by the police on 9 April 2015. He lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, he would be harmed or killed by the father (Shri Jaiveer) of his former girlfriend because the father objected to their relationship.

2.  The Applicant’s claim was dismissed by the Director in his decision dated 14 November 2017 on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

3.  The Applicant lodged an appeal/petition to the the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) against the decision of the Director, but the appeal/petition was subsequently withdrawn at his own request. On 26 March 2019, the Board directed that his appeal be withdrawn, and confirmed the Director’s decision as final. On 9 April 2019, he was repatriated back to India. He sneaked into Hong Kong illegally on 15 January 2021, and was subsequently repatriated back to India again on 20 February 2021.

4.  The Applicant claimed that he sneaked into Hong Kong illegally again on 22 September 2023. On 26 September 2023, he surrendered himself to the Immigration Department and requested to lodge a subsequent claim for non-refoulement protection on the basis that, if refouled, he would be harmed or killed by the brother (Om Prakash) of a traffic accident victim because the Applicant was blamed for the death of the victim in the traffic accident. Details of the Applicant’s claims have been summarised by the Judge at §§2-9 of the CALL-1 Form.

5.  By a Notice of Decision dated 5 March 2024 (“the Director’s Decision”), the Director refused to allow the Applicant to make a subsequent claim under section 37ZO(2) of the Immigration Ordinance, Cap 115. A decision made under this section is not appealable to the Board. The Director’s reasons for its decision refusing the Applicant’s request were summarised by the Judge at §10 of the CALL-1 Form, as follows:

“By [the Director’s Decision] 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.”

THE JUDGE’S DECISION

6.  On 20 March 2024, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision. The Applicant’s grounds of intended challenge, as raised in the Form 86 and confirmed by him at the hearing before the Judge on 11 July 2024, have been summarised by the Judge at §11 of the CALL-1 Form, 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 [unified screening mechanism].”

7.  On 6 August 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[12] [The grounds of intended challenge] 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.”

THIS APPEAL

8.  In his Notice of Appeal filed on 12 August 2024, the Applicant merely stated the following:

“I am disagree with the decision maker authorities. The Immigration Department does not allows me to file my Appeal/Petition against the decision made by the Director of Immigration. I do not think my case determined fairly.” [sic]

9.  In his 3-page written submissions lodged on 12 November 2024, the Applicant stated that he disagreed with the decisions of the Director and the Board, and repeated his allegation that he believed his case had not been determined fairly. He also complained for the first time about not being provided with legal and language assistance, and that he did not fully understand how his case was determined.

10.  At the hearing of the present appeal, the Applicant indicated that he had submitted his documents to the court and had nothing to add.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s or the Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

12.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Director is shown in the present case.

13.  Neither his disagreement with the decision of the Director, nor his general complaint of unfairness without particulars, can constitute a valid ground of appeal.

14.  As for his complaint about the alleged lack of legal or language assistance, the Applicant is not entitled to raise this new ground in support of his application for leave for judicial review, or rely on them as grounds of appeal against the Judge’s decision. Further, the Court has repeatedly held it is not the case that a non-refoulement claimant is entitled to legal representation or language assistance at every stage of the proceedings. In any event, the Applicant had legal assistance in relation to the determination by the Director of his request to make a subsequent claim, and language assistance at the hearing of his leave application before the Judge. We note that the Form 86, the Notice of Appeal, and his written submissions lodged on 12 November 2024 are all written in English of a reasonable standard. This indicates that the Applicant is either conversant with English, or has access to language assistance of his own.

15.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

16.  The Applicant’s appeal against the Order has no merit and is dismissed.