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HCAL 430/2024
[2024] HKCFI 1284
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 430 of 2024
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BETWEEN
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Sarabjit Singh |
Applicant |
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and |
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Director of Immigration |
Putative |
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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:
1. Leave for the applicant to apply for Judicial Review of the Board’s Decision be granted; and
2. The applicant shall issue the originating summons within 14 days after this Order in accordance with Order 53, rule 5 of the RHC.
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 27 February 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1724 of 2018 (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. Notice of hearing dated 11 March 2024 was sent to the applicant’s last known address informing him of the hearing date and time. The Notice further advised him that if he does not appear at the hearing, he will be deemed to have waived his right to make oral submissions at the hearing, and the Court will deal with his application according to the paper already placed before the Court. The Notice sent to the applicant was not returned by the Post Office.
3. Without prior notice to the Court, the applicant did not appear before the Court on the scheduled time and date. Accordingly, the Court will deal with his application on the papers.
The procedural history
4. The applicant is a national of India. He came to Hong Kong on 13 January 2013 as a visitor and was permitted to stay until 27 January 2013. He overstayed. On 20 February 2014, he surrendered to the Immigration Department. He lodged a non-refoulement claim on 20 February 2014 and 18 March 2014 respectively. He withdrew his application on 5 December 2016. On 30 December 2016 he lodged a non-refoulement claim again on the applicable risks.[1]
5. His previous claim is based upon his fear that, if refouled, he would be harmed or killed by his girlfriend’s brother, Sukhdev as he opposed his relationship with his girlfriend in India and his girlfriend’s brother also has a land dispute with his family.
6. By Notice of Decision dated 31 May 2017, the Director rejected his claim as they were not substantiated.
7. He appealed to the Board. By the Board’s decision dated 20 March 2018 (“the Board’s Decision”), the Board dismissed his appeal and confirmed the Director’s decisions in the Notice of Decision.
8. He applied for leave for judicial review of the Board’s Decision. The application was late. The Court of the First Instance refused to extend time for his application and dismissed his application.
9. He applied for leave to appeal the Court’s decision to the Court of Appeal out of time. The Court extended time for the applicant to appeal.
10. His appeal to the Court of Appeal was dismissed by the Court of Appeal.
11. His Notice of Motion to the Court of Final Appeal for leave to appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 6 September 2022.
12. By a letter of 4 December 2023, he applied to the Director for a subsequent claim.
13. By the Director’s Decision, the Director refused his application.
The subsequent claim application
14. 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.
15. The applicant submitted a letter on 23 January 2024 with the additional information. His duty lawyer had also submitted a supplemental statement to the immigration officer on 1 February 2024. On 23 January 2024, he provided:
(1) photos of his participation in the Punjab Referendum held in Hong Kong in 2020;
(2) screenshot of Facebook post in Indian Punjabi with English translation and a Facebook link to a video showing him putting up a Khalistan poster on a car in Wan Chai, Hong Kong;
(3) country policy and information note of India: Political parties and affiliation December 2023; and
(4) a copy letter dated 24 March 2023 from S. Simranjit Singh Mann, President Shiromani Akali Dal.
16. The applicant further said in his statement that his brother Angrej informed him over the phone in October 2023 that 5 police officers had visited his home inquiring for his whereabouts and 10 days later, Angrej told him that he enquired with the Indian Police why they would need to know his whereabouts. The police told him that Sukhev had filed a FIR against the applicant that he was a terrorist. Angrej further said that police told him that if the applicant did not surrender himself within one week, the Indian police would put him on the wanted list.
17. The immigration officer was aware of the new ground as raised by the applicant in support of his subsequent claim application. In paragraph 13, of the Director’s Decision, the immigration officer said:
“It is also noted that your assertion in the Statement and regarding your fear of being tortured and/or persecuted by the Indian Police or other authorities because of your political ideology, your Sikh religion and your Sikh ethnicity as Suhdev had filed a FIR at Indian police station and accused you of being a terrorist and had given to the Indian police some of your photos and videos showing your involvement with the Khalistan movement in Hong Kong has not been raised in your previous claim.”
18. The immigration officer refused the applicant’s application for the reasons below:
(1) The applicant did not raise the political reason above in his previous claim.
(2) The applicant’s brother information is only hearsay evidence, which the immigration officer did not give weight to it.
(3) Although he turned to become a member of the Shiromani Akali Dal (Amristsar) and a supporter of Khalistan Movement, he could not provide sufficient and reliable evidence to show that he had achieved a political profile due to his participation of the activities in Hong Kong so that he will be personally at risk upon return to India.
(4) Because of the above reasons, his allegations of police involvement, for which he may not have state protection and be able to relocate internally within India if refouled are not acceptable.
The application for leave to apply for judicial review application
19. The applicant has filed Form 86 dated 7 March 2024 to apply for leave for judicial review of the Director’s Decision.
20. The applicant has submitted a 10-page ground to challenge the Director’s Decision. They are categorized as Part A, the hearsay evidence; Part B, speculation; Part C, supporting documents; and Part D, summary. For the reasons below, I shall not set out those reasons in detail.
Discussion
21. 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).
22. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.
23. For the reasons below, I grant leave to the applicant for judicial review of the Director’s Decision.
(1) The Board made its decision on 30 March 2018. This is the final decision on the claim at the end of its process as determined by the Court of Appeal in Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalter JA, 24 August 2018.[2]
(2) In the applicant’s statement, he said he did not mention the political issue because such risk did not occur in 2017, it had only occurred after his involvement in Khalistan movement in Hong Kong since 2018. The supplemental statement submitted by the applicant’s duty lawyer said that since around November 2018, the applicant participated and advocated the Khalistan movement in Hong Kong. The immigration officer did not challenge these alleged facts in the Director’s Decision. Therefore, he was in error to say that the applicant did not mention this political issue in his previous claim and rejected this new issue. Because of such error, the immigration officer is in error of law.
(3) The immigration officer refused to give weight to the hearsay evidence. However, it is within the immigration officer’s discretion on the weight of the hearsay evidence after considering all the relevant circumstances. It seems that he had not taken into consideration the fact that the applicant took part in the Khalistan movement in Hong Kong. If he had taken this evidence in his assessment, he should have given weight to the hearsay evidence because such evidence became believable under the circumstances. Again, this is an error on the application of the law of evidence. It is also Wednesbury unreasonable for the immigration officer to reject the hearsay evidence outright.
(4) Because of the above error, there seems to be insufficient reasons for the immigration officer not to believe the applicant’s evidence on the new ground of the political issues.
(5) Since the new issue as raised by the applicant has to be assessed in accordance with the law, the matter should be considered by the Board where it is presided by legal professional.
24. I find that the political issues are significant changes of circumstances, which, when considered together with the previous claim, will have realistic prospect of success in the applicant’s intended judicial review of the Director’s Decision.
25. The applicant shall issue the originating summons within 14 days after this Order in accordance with Order 53, rule 5 of the RHC.
Dated the 23rd day of May 2024
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(M.O. WONG)(Ms)
for Registrar, High Court
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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 23/5/2024
Sarabjit 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 23/5/2024
Director of Immigration
Putative Respondent’s ref. no.:
L/M (289573) in ImmD RA 7/37/C (formerly RBCZ/10090/17 & RBCZ/3000408/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The applicable risks refer to :
a. risk of torture under Part VII C 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”).
[2] “45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. ….”
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