GURPREET SINGH v. DIRECTOR OF IMMIGRATION

HCAL 2243/2020

[2021] HKCFI 985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2243 of 2020

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of India who had previously raised a non-refoulement claim together with his wife under all applicable grounds on the basis that if they returned to India they would be harmed or killed by his wife’s family who disapproved their relationship, and after their claim had been rejected by both the Director of Immigration (“Director”) and the Torture Claims Appeal Board (“Board”), they were subsequently on 4 January 2018 removed back to India, but on 1 July 2019 the Applicant again entered Hong Kong illegally, and more than one year later on 24 August 2020 he surrendered to the Immigration Department and raised a subsequent claim on the same basis as before. He was subsequently released on recognizance pending the determination of his claim.

2.  In rejecting their previous claim raised in 2013, the Director in his Notice of Decision dated 15 May 2015 assessed the level of risk of harm from his wife’s family upon their return to India as low as state/police protection would be available to them as well as reasonable internal relocation for them to move safely to other parts of India away from their home district without any risk of being located by his wife’s family. His subsequent appeal to the Board was also dismissed for the same reasons.

3.  After being deported back to India in January 2018, the Applicant and his wife made their home in the Ludhiana District which is just 60 km from his home district, and after his wife had contacted her family about their return, her elder brother came with his followers on two occasions to beat up the Applicant, and on the second occasion they took his wife away and threatened to kill him next time if they see him, and so the Applicant became fearful for his life and departed India again in July 2019 for Hong Kong, and more than one year later he surrendered to the Immigration Department and raised a subsequent claim on the same basis as before that he would be harmed or killed by his wife’s family if refouled to India, for which he again attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service.     

4.  Section 37ZO of Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) provides that a person who has previously made a torture claim must not subsequently make another torture claim except as provided by the following subsections:

“(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 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.”         

5.  By a Notice of Decision dated 3 November 2020 the Director rejected the Applicant’s request to make a subsequent claim upon finding that his claimed threats from his wife’s family are not new risks of danger to his life upon his return to India, nor could the alleged assault incidents amount to a significant change of circumstances given the previous findings that his claim is a localized one with reasonable internal relocation available, that it was his wife who contacted her family that they were located, and with numerous other places in India for him to move further away without any risk of being located again that the Director concluded that there is no significant change of circumstances which would give his intended subsequent claim a realistic prospect of success.  

6.  As section 37ZR of the Ordinance does not provide any appeal to the Board against a Director’s decision regarding the subsequent claim, the Applicant on 10 November 2020 filed his Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he merely exhibited a copy of the decision but without putting forth any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or in his decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

7.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

8.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their previous decisions that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, and in the absence of any evidence that such finding no longer holds true, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

9.  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 irrationality or procedural unfairness in it, nor any failure on the part of the director to apply high standards of fairness in his consideration and assessment of the Applicant’s subsequent claim.

10.  Furthermore, the Applicant on 26 January 2021 filed an affirmation requesting to withdraw his application as his problem in his home country has been solved and that he wants to return to India as soon as possible.

11.  In the circumstances, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly accede to his request and 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