RAM CHANDER v. DIRECTOR OF IMMIGRATION

CACV 12/2018

[2018] HKCA 585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 12 OF 2018

(ON APPEAL FROM HCAL 305/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  The applicant seeks to appeal against the decision of P Li J on 10 January 2018 refusing to grant him leave to apply for judicial review in respect of the decisions of the Director of Immigration on 21 June 2016 and 2 June 2017. The Form 86 was filed on 19 June 2017.

2.  The history of the applicant’s case is set out at [1] to [12] of the judge’s observations in the CALL-1 Form.  We shall not repeat the same here as the relevant CALL-1 Form has been given to the applicant and it is published at the Judiciary website as [2018] HKCFI 1997. In short, the applicant wanted to re-open his non-refoulement claim after he had withdrawn his appeal and he had been removed back to India in 2014.

3.  The decisions of the Director were made in respect of the applicant’s subsequent claims for non-refoulement protection.  His claim had previously been rejected in 2013 and he was removed back to India in 2014.  He came back to Hong Kong illegally in 2015. 

4.  As the judge rightly observed, the application in respect of the decision of 21 June 2016 was out of time.  The judge refused to grant extension of time for that application to be brought as he was not satisfied that there was good reason for extending time, see [16] to [20] of the CALL-1 Form.  That decision was plainly right as the applicant had provided scant information to support his subsequent claim.

5.  In MI v Secretary for Security [2018] HKCA 419, it was held that in judicial review cases brought outside the three-month time limit where the judge refused to extend time, an applicant must obtain leave under Section 14AA of the High Court Ordinance before an appeal can be brought.

6.  The applicant did not seek leave from the judge. As there was no good explanation for the delay and, as explained below, the appeal has no merit, we refuse to grant leave under Section 14AA in respect of the decision of 21 June 2016.

7.  In respect of the decision of 2 June 2017, the applicant has agreed that his appeal against the judge’s refusal of leave to apply for judicial review may be heard by a two-judge court.

8.  Section 37ZO of the Immigration Ordinance provides:

“ 37ZO. Limitation on subsequent claim

(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(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 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.”

9.  Though the statutory provision is applicable only to torture claims, by virtue of the administrative provisions governing USM, we are satisfied that under the current USM regime the same constraints are applicable for other non-refoulement claims.  In particular, paragraphs 82 and 83 of the guidance note of the Director for determination of Non-refoulement claims provide:

“82. A person who has previously made a non-refoulement claim must not subsequently make another non-refoulement claim (i.e. a subsequent claim) unless he can provide 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.

83. In deciding whether or not a person may make a subsequent claim, the case officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a non-refoulement claim or torture claim previously made by the person.”

10.  We would put a caveat on these statutory as well as administrative constraints.  The non-refoulement duty of the Director (and the Appeal Board) stems from the non-derogable rights under BOR 2 and BOR 3. As long as an applicant is still in Hong Kong, the Director has a continuing duty to observe the same, see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [175] to [176].  In that case, Ribeiro PJ cited a judgment of the Strasbourg Court in Al Husin v Bosnia and Herzegovina [2012] ECHR 232 holding that in the European setting, the decision maker (the court in that case) has a duty to ensure that the assessment is a full and up-to-date one of the current situation.  In Hong Kong, as the primary decision maker is the Director (and the Board), the Director cannot ignore such duty notwithstanding previous assessments having been made if an applicant provides further cogent evidence or information on the current situation establishing a substantial risk of harm.   

11.  Whilst it is open to the Director to adopt measures (like the statutory and administrative constraints in question) to prevent abuse of the system by a claimant who makes repeated claims without merit, the Court would ensure that the application of such constraints in a particular case would not prevent a genuine non-refoulement claim with realistic prospect of success from being properly considered by the Director.

12.  As we shall explain below, we do not think this is the situation in the present case.

13.  Having read the materials presented by the applicant to support his subsequent claim, including the representations made after the decision of 21 June 2016, we are of the view that he did not provide substantial and cogent information to show that the previous assessment by the Director was wrong in any respect. 

14.  Though the previous assessment was only made in respect of his torture claim, a torture claim is a non-refoulement claim coming within the meaning of the USM.  As such the administrative constraints are applicable notwithstanding that the previous assessment was made in respect of a torture claim only.

15.  In the present case, the subsequent claims advanced by the applicant are substantially based on the same alleged facts, viz the taking of his land by his uncle Dharampal and threats by him and attacks by his underlings.  He had also complained about non-action on the part of the Indian police notwithstanding his report.  All these allegations had been duly considered by the Director in the 2013 assessment set out in the letter of 4 September 2013.

16.  In these circumstances, the prospect of success is the same irrespective of it being advanced as a torture claim or BOR 2 or BOR 3 claim.

17.  The Director was correct in coming to the conclusion that the materials presented by the applicant did not support a claim, when taken together with the material previously submitted, that has a realistic prospect of success.

18.  We agree with the judge that the application for judicial review is without merit and leave should not be granted for the same.

19.  For these reasons, we shall not grant leave for an appeal against the judge’s refusal to extend time in respect of the decision of 21 June 2016, and the appeal against the refusal of leave in respect of the decision of 2 June 2017 is dismissed.