JAGSIR SINGH v. DIRECTOR OF IMMIGRATION

HCAL 535/2022

[2022] HKCFI 2457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 535 OF 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Leave to apply for Judicial Review be refused; and

2.  A Restricted Proceedings Order (RPO) be made against the applicant.

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 29 April 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1920 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.

The procedural history

3.  The applicant is an illegal immigrant from India. He entered Hong Kong as a visitor, but he overstayed. On 10 May 2016, he surrendered to the Immigration Department. He lodged non-refoulement claim by way of written representation on 14 December 2016. He lodged a non-refoulement claim on all applicable grounds[1].

4.  His claim on the applicable grounds was rejected by the Director by a Notice of Decision dated 8 June 2018 (the “Director’s Decision”).

5.  He appealed the Director’s Decision to the Torture Claims Appeal Board (the “Board”). By its Decision dated 16 August 2018 (the “Board’s Decision”), the Board dismissed his appeal on claim on all grounds.

6.  He applied for leave for judicial review of the Board’s Decision and was dismissed by the Court by its Order dated 16 July 2020 (“the Court’s Order”).

7.  His appeal to the Court of Appeal against the Court’s Order was dismissed by the Court of Appeal on 21 January 2021.

8.  His Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 8 March 2021.

9.  His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 10 November 2021.

10.  He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 21 January 2022.

11.  By the Director’s Decision, the Director refused his application.

The subsequent claim application

12.  The factual basis of his previous claim is that if refouled, he would be harmed or killed by different parties as follows:

(1)  the clients he had persuaded to invest in the India Pearls Limited Company, which collapsed and he was unable to return the money to them;

(2)  the members /supporters of the Bharatiya Janata Party (“BJP”) and their key person Sharma (“Sharma”) because he refused to convert from Congress Party of India to BJP, causing Sharma to lose in the 2014 elections;

(3)  Indian police as he considered himself to be a wanted person of a false theft case and his default of loan case; and

(4)  the landlord as he was unable to settle the loan for arranging his trip to Hong Kong for employment.

13.  The Director found that his claim was not substantiated. He found that the risk of him being harmed by his enemies in India was low. The immigration officer had doubt in his evidence in relation to the investment by his clients as he alleged. The immigration officer also did not accept that the BJP had the intention of harming him. The past treatment by them to him did not attain a minimum level of severity. His allegation that the Indian police framed a false theft case against him was only his speculation as he was free to leave home on 7 April 2016. The immigration officer considered that the investors and the BJP people would not have such resources to locate him anywhere in India and state protection should be available to him. Even if he is charged by police, there is no evidence that he will not have a fair trial in India. The immigration officer also considered that internal relocation would be a viable alternative for him. The Director rejected his claim. He appealed to the Board.

14.  The Board had also considered the applicant’s evidence. It found that his evidence consisted of a lot of inconsistencies. The Board did not accept that BJP people will harm him. The Board also did not accept the Indian government will harm him. The Board, after considering his evidence, found that most of his core assertions were fabrications or was wholly unreliable. The Board further found that state protection was available to the applicant and internal relocation was a viable alternative.

15.  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.

16.  In support of his subsequent claim, the applicant relies upon his enemies mentioned above and also on fear of harm from the Indian government because he supports the Khalistan movement, which is to have an independent state for the Sikhs. He said that he had been followed by someone from the Indian government in Hong Kong. His family in India were harassed by his creditor, the BJP people and Sharma. The Indian Consulate had sent people to stalk him because of his support of Khalistan movement. Some BJP people also threatened to kill him if he returns to India. Police in India had also made fake criminal charges against him. The BJP people and police in India caused troubles to his family and they had moved to live other place.

17.  The immigration officer considered that the applicant’s feared enemies are the same enemies in his previous claim for the same reasons, which the Director and the Board had rejected. There is no evidence to support his involvement in the Khalistan movement and his allegation that the Indian Consulate had sent some people to stalk him is only his speculation. His family situation in India is only hearsay evidence from his family in India, which cannot be verified. The Director therefore considered that, given the additional materials or alleged facts as raised by the applicant, there was no significant change of circumstances, which considered together with his previous claim, would not give a realistic chance of success of his subsequent claim. As such, the Director rejected his subsequent claim application.

The application for leave to apply for judicial review

18.  The applicant has filed an affirmation in support of his application. In his affirmation, he said that the Director’s Decision is wrong, biased and procedurally unfair for the reasons summarized below.

(1)  He has placed an unnecessarily high threshold in determining realistic prospect of success for non-refoulement case.

(2)  His Decision is biased as he has a pre-conceived decision to reject his application and he simply repeated what was decided by the Board against him.

(3)  There was no screening interview, which is procedurally unfair.

(4)  The Director did not take into consideration that he had been charged by police in India and he would be arrested if he returns to India. He has already submitted a Police Report to the Director on this issue, which the Director did not accept.

(5)  He will not get justice from Indian Authorities due to the reason that he is involved in Khalistan Movement. The Director did not take this into consideration.

(6)  He was denied of his chance of appeal at the Board for his subsequent application, which is procedurally unfair for him.

DISCUSSION

19.  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).

20.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Director did not pay attention to his new circumstances and reasons. Nor did he pay attention to the documents submitted to him.

21.  As to the grounds in support of this application as mentioned in paragraph 18 above, grounds (1) and (2) are his bare assertions or his opinions within any evidence in support. Ground (3) is a procedure prescribed under the law. His case had gone through the screening process in the previous claim. This also applies to Ground (6) as his previous claim had been considered by the Board by way of appeal. There is nothing amiss in the procedures. Grounds (4) and (5) are matters of facts, which the Director has rejected after considering the evidence. He has given sufficient reasons in the Director’s Decision.

22.  The Court does not find any error of law or procedural unfairness in the Director’s Decision. The Director’s finding of the facts is not in any respect open to challenge as Wednesbury unreasonable or irrational.

23.  Since there is no realistic prospect of success in his subsequent claim, I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The RPO

24.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his previous claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against him. See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.

25.  RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Director of Immigration [2021] HKCFI 1991 by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021, § 9 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129, § 25.

26.  In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as his intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.

27.  For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against him. The applicant has been explained the proposed restricted proceedings order before this hearing.

28.  Upon being requested to show cause why the Court should not make the RPO against him, the applicant said he will follow the law.

29.  Having considered the applicant’s explanation, I am satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong only. I shall therefore make the RPO in terms below:

(1)  The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court, and any appeal, including this Order, without leave of the Court of First Instance.

(2)  All applications for leave under paragraph (1) shall be made to Deputy High Court Judge K. W. Lung or in his absence, the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List.

(3)  At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of his intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with the said application for leave.

(4)  Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the Court written representations regarding the same.

(5)  All applications made pursuant to this order and all ancillary matters be dealt with by the Court on paper and without any oral hearing unless the Court should otherwise direct.

(6)  If the Applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the Court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the Court for a decision as to whether they should be permitted to continue or should be dismissed.

(7)  Notice of each decision by this Court or the designated Judge made pursuant to this order be given in writing to the Applicant and to each intended defendant or respondent named in the fresh proceedings.

(8)  Whether or not any fresh proceedings are brought to the notice of the Court, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the Court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly.

(9)  No more than one leave application under paragraph (1) may be made by the Applicant within any period of 3 months.

(10)  No appeal shall lie from a decision of the Judge granting or refusing leave within this Order, unless leave to appeal has been granted by the Judge.

(11)  This order shall cease to have effect at the end of 5 years from the date of this order.

(12)  A copy of this Order shall be sent to the Registrar of the High Court.

DISPOSITION

30.  The applicant’s application is dismissed.

31.  RPO in terms of paragraph 29 be made against the applicant.

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