LATHWAL NAVEEN v. DIRECTOR OF IMMIGRATION

HCAL 2309/2024

[2025] HKCFI 2555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2309 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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Director of Immigration dated 5 June 2024 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

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 5 June 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claims 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 38-year-old national of India who arrived in Hong Kong on 17 October 2014 as a visitor and with permission to remain as such up to 31 October 2014 when he did not depart and instead overstayed, and on 6 November 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his paternal uncle and son over their land dispute in his home district.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 18 July 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 assessed the level of risk of harm from his uncle and son upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his uncle and son was just a private land dispute between them 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 3.2 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 Delhi where it would be difficult if not impossible for his uncle and son to locate him.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 23 August 2018 after he failed to attend the scheduled hearing and elected not to give further evidence or representation to the Board which found his claim not credible due to material inconsistencies and discrepancies, and that in any event even if real that any risk arising from what was essentially a private family dispute between him and his uncle only without any official involvement that it would be negated by the availability of state protection and internal relocation to the Applicant upon his return to India that there was no merits in either his claim or appeal, and that it also confirmed the Director’s decision.

6.  On 4 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but before his application was heard, the Applicant informed the Director of his wish to return to India as he had settled his land dispute with his uncle, and so on 21 May 2019 he was repatriated to India but without informing the Court or withdrawing his application.

7.  Subsequently on 31 March 2022 his leave application was refused by this Court upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 1823/2018 [2022] HKCFI 912).

8.  The Applicant never brought any appeal against the Court’s decision, but sometime in August 2023 he sneaked back into Hong Kong, and was arrested by police on 12 December 2023 and was referred to the Immigration Department for investigation.

Request To Make Subsequent Claim

9.  On 18 January 2024 the Applicant in writing to the Immigration Department requested to make a subsequent claim as after settling the land dispute with his paternal uncle and upon returning to his home in India, the Applicant in August 2019 had another dispute with his uncle over his religious conversion from Hinduism to Christianity when his uncle took out a pistol and fired a shot at him but missed, that the Applicant managed to escape from the scene and subsequently departed India for various places including Thailand, Nepal and Dubai before returning to India to stay in Mumbai, but when he later heard that his uncle was coming to Mumbai to look for him, he became fearful for his life and departed India in August 2023 for China, and from there he later sneaked into Hong Kong to again seek non-refoulement protection by requesting to make a subsequent claim on the basis that he would be harmed or killed by his paternal uncle over their religious dispute if refouled to India.

10.  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.”

11.  Accordingly, the Director by a letter dated 26 February 2024 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 Duty Lawyer Service (“DLS”) by submitting a statement with further details of his religious dispute with his uncle and with copies news abstracts of religious violence in India.

12.  By a Notice of Decision dated 5 June 2024 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 regard the private nature of the dispute and with the same paternal uncle as the antagonist, and while accepting his alleged religious conversion would amount to a significant change of circumstances since his previous claim was determined, but found that such change when taken together with the material previously submitted in support of his previous claim would not 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 state protection and internal relocation to similarly negate whatever risk that may arise from his intended subsequent claim upon his refoulement to his home country.

13.  On 29 November 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 relief was given in his Form or supporting affirmation of the same date in which he just repeated his proposed subsequent claim as before but without putting forth any proper ground for his intended challenge of the Director’s decision.

14.  The Applicant was by then also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.  As the last day of the 3-month period for him to file his Form 86 fell on 5 October 2024 after discounting the month of August for the court’s vacation, the Applicant was therefore some 8 weeks late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

16.  In the Applicant’s case, a delay of 8 weeks must be considered as substantial and inordinate, for which he explained at the hearing of his application that he was then being detained by the Immigration Department and without legal representation that he had had to seek help from his friends on the outside with his application which caused the inevitable delay.

17.  The record shows that the Director’s decision was sent on the same day of 5 June 2024 to the Applicant’s then lawyer from DLS without being returned through undelivered post, and while accepting that there would be some inevitable delays to incoming and outgoing mails when in detention, given the availability of assistance from welfare officers stationed in the detention, I am not satisfied that the Applicant has provided a good or valid justification for his serious delay.

18.  As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

19.  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 is essentially based on the same private nature as in his previous claim and from the same antagonist, i.e. his paternal uncle only without any official involvement at all, and that which together with the materials submitted for his previous claim would not give his subsequent claim any realistic prospect of success, as correctly found by the Director, I am not satisfied that there is any prospect of success or merits in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I therefore refuse to extend time and accordingly dismiss 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