GURMAIL v. DIRECTOR OF IMMIGRATION

HCAL 1581/2025

[2025] HKCFI 3976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1581 of 2025

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 July 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 25 June 2025 (the “2025 Notice”), refusing his request for making a subsequent claim (the “Request”).

2.  The Applicant is an Indian national.  He was arrested on 8 December 2015 after having entered Hong Kong illegally from Mainland China. He raised a non-refoulement claim on 11 December 2015 (the “previous claim”).  His claim was refused by the Director’s decision in his Notice of Decision dated 13 September 2017 (the “2017 Notice”).  His appeal against the 2017 Notice was dismissed by the decision (the “Decision”) of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”).  His leave application to review the Board’s Decision was refused by this Court on 29 April 2022. 

3.  He did not leave Hong Kong.  On 16 December 2024, he made the Request to file a subsequent claim.  By a letter dated 31 December 2024, an immigration officer informed him of his right to seek legal representation for making his Request and the availability of publicly-funded legal assistance through the Duty Lawyer Service (the “DLS”).  Upon his confirmation that he needed legal assistance, his case was referred to the DLS.  However, the DLS refused to represent him.  By a letter dated 22 January 2025 in English with Hindi translation, the immigration officer informed the Applicant of the decision of the DLS and advised him to consider seeking private legal representation if he saw fit to do so.  The officer also informed him of the procedures in making the Request and reminded him to provide further supporting evidence on or before 5 February 2025.  After considering the information provided by the Applicant, the officer on behalf of the Director issued the 2025 Notice refusing his Request.   The Applicant now applies for leave to apply for judicial review of the 2025 Notice.  

The previous claim

4.  The basis of the Applicant’s previous claim was that he would be harmed or even killed, if returned to India, by his girlfriend’s family members because they objected to the relationship between him and his girlfriend, that they were from different castes and had distinct family backgrounds.  The Board upheld the Director’s decision refusing his application for non-refoulement protection.  It found the Applicant incredible and his claim untrue.  At paragraph 32 of the Decision, the Board held:

“32. On the basis of the discussion above, I do not regard the [Applicant’s] claims about a relationship with a girl from a different caste in India to be credible, and I find therefore that his claim to have been threatened by her family is untrue. Accordingly I find that there is no basis for the [Applicant’s] claim that he would be harmed by members of [his girlfriend’s] family or anyone else if he were to return to India.”

The Request and the present claim

5.  The Applicant claims that he was told by his family members that his girlfriend’s father forced her to marry a gangster, but she refused because she was in love with the Applicant.  Eventually, she committed suicide in March 2024.  Her father targeted the Applicant’s family to revenge for his daughter’s death.  He joined the Bharatiya Janata Party (“BJP”) which is the ruling political party in India and became very powerful.  He also has connection with the most dangerous gang responsible for targeting killing in India.  He attacked the Applicant’s family members, such as his brother who was seriously injured and hospitalised.  He destroyed the grocery store where the Applicant and his girlfriend used to meet.  He cautioned people not to give assistance to the Applicant’s family and offered a reward of 500,000 Indian Rupees for information of the Applicant’s whereabouts.

The immigration officer’s decision

6.  The immigration officer considered that the Applicant’s present claim is a reiteration or continuation of his previous claim.  The alleged change of circumstances is his girlfriend’s suicide which made her father more furious and targeted the Applicant and his family.  However, the officer found the source of fear and nature of threat, remain the same, ie his girlfriend’s father and the threat of death.  The immigration officer therefore did not accept that the alleged risk of harm in his current claim upon his return to India constitutes a significant change of circumstances warranting the making a subsequent claim.

7.  The immigration officer also referred to the finding by his colleague in the previous claim that both state protection and internal relocation are available to mitigate or reduce the risk of harm.  He therefore made a further finding that in the absence of evidence adduced by the Applicant concerning any adverse change in the Indian society and government as a whole and on considering the latest objective country of origin information for India, that state protection and internal relocation would still be available to lower or negate the Applicant’s perceived fears upon his return to India.

Grounds for judicial review

8.  The Applicant did not advance any grounds of application in his Form 86 or supporting affirmation.  At the hearing, after having been explained the law applicable to judicial review and making of a subsequent claim and the procedural background leading to his present leave application, the Applicant confirmed he had no complaints about errors of law, procedural unfairness and irrationality in the immigration officer’s decision in the 2025 Notice. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision, which the Court will turn to in the next section.

Overall scrutiny

9.  Having considered the Request, the Board’s Decision in the previous claim and having rigorously examined the 2025 Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO; correctly identified the issues; and properly analysed the evidence. The immigration officer observed a very high standard of fairness. He advised the Applicant on the law and procedure in prosecuting his Request and the availability of the DLS, though the DLS subsequently refused to represent him.

10.  In essence, the basis of the Applicant’s Request is that there are changes in circumstances, namely the suicide of his girlfriend which aggravated the hate of her girlfriend’s family members against him and escalated the risk of revenge on him.  Having compared the finding of the Board and of his colleague in the previous claim, the immigration officer found that the Request was just a reiteration or continuation of the previous claim and that the source, the nature of risk and fear are the same.  He was not satisfied that the changes in circumstances were significant and that the changes taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  Hence he refused the Applicant’s Request.

11.  On any objective view, the immigration officer’s reasons for refusing the Request are un-reproachable.  In the previous claim, the Board found the Applicant incredible and his claim untrue, ie fictitious.  As the Applicant’s subsequent claim is built on the same source of fear and same factual background which is fictitious, it suffers the same defect.  He could not build a fact on a fiction.  He offered no new evidence or information which suggests that there has been a significant change in circumstances since his previous claim was finally determined and that the change, if any, when taken together with the material previously submitted in support of his previous claim, would give the subsequent claim a realistic prospect of success.  These are finding of facts which is exclusively within the province of the Director to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  This Court could detect no error of law in the 2025 Notice or procedural unfairness in the making of the decision in the Notice.  The 2025 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. 

Conclusion

12.  For the above reasons, the leave application is refused.

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