RE MR. RAM CHANDER

HCAL305/2017

[2018] HKCFI 1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 305 of 2017

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;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Background

1.   On 4 June 2010, the Applicant lodged a torture claim. The basis of his claim was that he had a land dispute with his paternal uncle. He would be harmed or killed by his uncle if returned to India. His claim was assessed under Part VIIC of the Immigration Ordinance. The Director of Immigration (‘Director’) concluded that it was a private land dispute without any official involvement.

2.   On 4 September 2013, his claim was dismissed by the Director.

3.   On 23 September 2013, the Applicant wrote to the Director requesting to be assessed again under the USM which was scheduled to commence on 3 March 2014.

4.   On 7 October 2014, the Applicant wrote to withdraw his non-refoulement claim under the USM.

5.   On 11 November 2014, the Applicant was removed from Hong Kong.

6.   On 1 December 2015, the Applicant wrote to the Director to make a fresh non-refoulement claim. The basis of this claim was that the Applicant had a land dispute with his elder paternal uncle.

7.   The Director later found out that the Applicant had sneaked into Hong Kong on 11 October 2015 and had surrendered to the Director on 12 October 2015.

8.   On 10 December 2015, the Director requested for further evidence to justify this subsequent claim by 28 December 2015. The Applicant did not file any evidence.

9.   On 8 July 2016, there was no further information filed despite repeated request by the Director in writing. The Director disallowed the Applicant to make the subsequent claim. The Director opined that there was insufficient evidence to show that there had been any significant change of circumstances since the last non-refoulement claim which was withdrawn on 7 October 2014. Taking into consideration all the material submitted, there was not a realistic prospect of success in the subsequent claim. Further, the Applicant fail to give any reason which satisfies the applicable grounds under the USM.

10.   From October 2016 to May 2017, there was a series of correspondence between the Applicant and the Director. The Applicant wanted to make another non-refoulement claim. Again, the Director sought further information from the Applicant to justify the making of another non-refoulement claim.

11.    The Applicant replied in May 2017. He repeated that his uncle would kill him because of a land dispute. He had reported the assault to the Punjab Police. His leg was injured during the assault. The police failed to register his report as they were corrupt.

12.   On 2 June 2017, the Director opined that there was no significant change of circumstances since the torture claim which was withdrawn on 7 October 2014. There was insufficient reason which satisfies any applicable grounds under the USM.

The leave application for judicial review

13.   In the amended Form 86 dated 19 June 2017, the applicant sought to quash the decisions of the Director dated 8 July 2016 and 2 June 2017.

14.   His application for legal aid was refused on 19 September 2017.

15.   During the oral hearing on 3 November 2017, the Applicant indicated that he went back to India for a year as the problem, which gave rise to his previous claim, was resolved. However, the problem recurred again and he requested a re-consideration of his claim.

Leave application in relation to the Director’s decision on 8 July 2016.

16.   Under s. 37ZO (1), a person who had previously made a torture claim must not make another subsequent torture claim.

17.   Under s. 37ZO (2), the Applicant must provide sufficient evidence to satisfy an immigration officer that, there had been a significant change of circumstances since the withdrawal. In addition, this change together with the material already submitted, could support a realistic prospect of success in the subsequent claim.

18.   The Director disallowed the Applicant’s subsequent claim on 8 July 2016. The reason being that the Applicant had not filed any further evidence to justify the subsequent claim. The Director acted in accordance with the above subsections. There is no error of law.

19.   The Applicant should have applied for judicial review within 3 months of the Director’s decision dated 8 July 2016. The present leave application is about 8 months out of time. There is no reason given by the Applicant for the delay. In my view, there is undue delay.

20.   I note that the Applicant had written to the Director during the interim. This conduct in my view cannot be a good reason for an extension of time for judicial review.

21.   For the above reasons, I refuse the leave application.

Leave application in relation to the Director’s decision on 2 June 2017.

22.   As for the Director’s decision dated 2 June 2017, it was a repeated request for making a subsequent claim.

23.   I shall deal with the several grounds raised in his affidavit in support of this leave application.

24.   The Applicant complained that he was not given legal representation during the period when he had correspondence with the Director. This infringe the high standard of fairness. In my view, the high standard of fairness does not require the Hong Kong Government to provide legal representation at all stages when a claimant communicates with the Director. I reject this ground.

25.   The Applicant also complained that the Hong Kong Government should have provided interpreter services to him. The Applicant had filed a torture claim in 2010 which was subsequently dismissed in 2013. Duty Lawyer Services were available to eligible applicants in completing the non-refoulement claim form and attending screening interviews. I am sure interpreter services would also be provided during those stages.

26.   All along, the Applicant communicated with the Director without any problem. His affidavit in support of the present leave application is in English. I am sure that he was able to find assistance from his friends or through other means. I reject this ground.

27.   The Applicant pointed out that the Director failed to consider BORO 2. The Director disallowed the subsequent claim as the Applicant failed to justify that there was significant change of circumstances under s.37ZO (2). The Applicant failed to file any further evidence in support. Had there been any evidence which could support BORO 2, the Applicant would have submitted them to the Director already. I reject this complaint.

28.   The Applicant complained that there was no interview for him to explain his situation. As pointed out in the last paragraph, the Applicant had been given ample chances to file evidence. He failed to do so. I do not think the Director is duty bound to interview the Applicant.

29.   The Director disallowed the Applicant’s subsequent claim on 2 June 2017. The reason being that the Applicant had not filed sufficient evidence to justify the subsequent claim. Subsections 37ZO (1) and (2) apply to this leave application. There is no error of law.

30.   For the reasons above, the leave application in relation to the Director’s decision dated 2 June 2017 is not reasonably arguable. There is no realistic prospect of success. I refuse the 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