BISWAS SUBHASH AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 2392/2025

[2026] HKCFI 1581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2392 OF 2025

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 1st to 4th Applicants and by the 2nd Applicant for the 5th Applicant in open court (collectively “the Applicants”);

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 25 August 2025 refusing to allow the Applicants, a married couple with their 3 children all of Indian nationality, to make a subsequent claim for non-refoulement protection after their previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds.

2.  The husband, 1^st Applicant (“A1”), now 53-year-old first arrived in Hong Kong by himself on 14 May 2009 as a visitor and subsequently overstayed, and upon his arrest by police he raised a torture claim on the basis that if returned to India he feared of being harmed or killed by his creditors over his unpaid debts, and upon the subsequent arrival of his wife and their 2 elder children, the 2^nd , 3^rd and 4^th Applicants (“A2”, “A3” & “A4”) on 21 November 2011, A1 also raised a torture claim for them on the same basis of his own claim which were jointly assessed together by the Director, and after their torture claims were rejected, they then sought non-refoulement protection on the same basis.

3.  While released on recognizance pending the determination of his non-refoulement claim, A1 was arrested in 2016 for undertaking unauthorized employment, and was subsequently convicted and served a term of imprisonment of 22 months and 2 weeks.

Previous Non-Refoulement Claim

4.  By a Notice of Decision dated 27 October 2017, the Director rejected the non-refoulement claims of A1 – A4 on all the remaining applicable grounds other than torture risk including risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

5.  In his decision, the Director took into account of all the relevant circumstances of the claims of A1 - A4 and assessed the level of risk of harm from A1’s creditors upon their return to India as low due to the absence of or low intensity and frequency of past ill-treatment from the creditors, that there is no reliable evidence of any real intention of his creditors to seriously harm or kill him or any members of his family other than to press him to repay his debts, that in any event it was a private monetary dispute between A1 and his creditors only without any official involvement that state or police protection would be available to A1 - A4 if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with his wife and children to other part of the country away from his home district in large cities such as Mumbai or Kolkata where it would be difficult if not impossible for his creditors to locate them.

6.  Their joint appeals against the Director’s decision was dismissed by the Board on 24 August 2018 after hearing the couple in evidence and submissions and upon finding no merits in their claims or appeals, and that it also confirmed the Director’s decision.

7.  Their separate applications for leave to apply for judicial review of the Board’s decision were subsequently withdrawn by both A1 and A2 as regard their own case, while those of the children A3 and A4 were refused by this Court on 23 April 2024 upon finding none of the proposed grounds for their intended challenge reasonably arguable, that there was no error of law or procedural unfairness in their process before the Board or in its decision, and that there was no prospect of success in their intended applications (HCAL 1976/2018 & 1977/2018 (Consolidated) [2024] HKCFI 1087).

8.  The subsequent applications by A3 and A4 for extension of time for their late appeals were also refused by this Court on 23 July 2024 upon finding no valid reason or justification for their 3 weeks’ delay and in the absence of any valid grounds of appeal put forward by either of them or their parents.

9.  Meanwhile on 22 May 2020, despite having earlier already withdrawn her leave application for judicial review of the Board’s decision, A2 filed another Form 86 for leave to again apply for judicial review under HCAL 978/2020 as she claimed to be very much confused when she withdrew her application, but upon hearing her in her submissions DHCJ Levy on 7 August 2025 refused to extend time to her late application in the absence of any good reason for her serious delay, and refused to grant leave and dismissed her application upon finding no reasonably arguable ground or basis for her intended challenge, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no merit or prospect of success in her intended application (HCAL 978/2020 [2025] HKCFI 3223).

10.  While released on recognizance pending the determination of her claim, A2 on 20 July 2023 gave birth to their son, the 5^th Applicant (“A5”) in Hong Kong, and that A1 and A2 subsequently also raised a non-refoulement claim for him on the same basis as their own claims of fear of being harmed or killed by A1’s creditors if refouled to India, and for which they completed a NCF on his behalf on 8 January 2024 and attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

11.  By a decision dated 21 May 2024, the Director also rejected the claim of A5 on all the applicable grounds upon finding no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his father’s creditors upon his return to India other than bare assertions and mere speculations of his parents and in the absence of any past ill-treatments or threats from the creditors against him or any evidence that they were even aware of his existence let alone to form any intention to harm him, that in any event it was a private monetary dispute between A1 and his creditors only without any official involvement that state and police protection would be available to A5 if resorted to, and that similarly reasonable internal relocation alternatives are available in India for A5 to move with his parents as able-bodied adults with working experience to other parts of the country away from their home district in large cities where it would be difficult if not impossible for his father’s creditors to locate him.

12.  On 29 May 2024, A1 and A2 lodged an appeal for A5 to the Board, and for which they attended an oral hearing on 27 September 2024 before the Board during which both gave oral evidence and answered questions raised of A5’s claim by a different Adjudicator for the Board, and by a decision dated 10 October 2024 the Board dismissed the appeal upon finding no proper basis for A5’s claim of fear of being harmed or killed by A1’s creditors, and in applying the principles for assessing and determining non-refoulement claims by minor children based on the primary facts of their parents’ claims as laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53, the Board also found no underlying matters that may support any potential non-refoulement bases specific to A5’s personal circumstances and situations as a minor upon his return to India with his parents.

Request To Make Subsequent Claim

13.  Some 6 months later on 28 April 2025, A1 in writing to the Immigration Department requested to make a subsequent claim for himself and his entire family on the basis that he has been informed by his siblings in India that his same creditors are still looking for him and have threatened his siblings and even attacked his elder brother who subsequently required medical treatments in a hospital that A1 and his family still fear of being harmed or killed by his creditors if refouled to India.

14.  There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(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.”

15.  Accordingly, the Director required the Applicants to provide further information and evidence in writing in support of their request within 14 days, which they subsequently did via their lawyer from DLS with several statements containing essentially a regurgitation of their claims as before and with uncorroborated information of threats and attacks by A1’s creditors against his siblings and other members of his family in India as told by them on the phone without any documentary evidence in support.

16.  By a Notice of Decision dated 25 August 2025, the Director refused to allow the Applicants to make a subsequent claim upon finding that the basis thereof was essentially the same as that of their previous claims, and that they failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been any significant change of circumstances since their previous claims were determined, or that those changes when taken together with the material previously submitted in support of their previous claims would give their subsequent claim any realistic prospect of success given the unchallenged findings by both the Director and the Board in their previous claims of the availability of state protection and internal relocation to similarly negate whatever risk that may arise from their intended subsequent claim.

17.  On 27 October 2025, the Applicants filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in A1’s supporting affirmation they put forward the following grounds for their intended challenge:

(1)  Procedural impropriety in the Director’s failure to properly apply para 2 of the UN committee against a National state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event that the Director’s decision that focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in the Director’s failure to conduct sufficient inquiry into the relevant COI or to consider that the Applicants would face serious risk from their enemies due to their political and statistical views that they would face serious harm upon their refoulement;

(3)  Procedural impropriety/irrationality in the Director’s failure to give reasons for assessment of lack of BOR 2 risk and/or sufficient basis to support conclusion of lack of BOR 2 risk;

(4)  Procedural impropriety in the Director’s failure to properly consider the Applicants’ fear of genuine risk from their enemies that they cannot relocate to other places as their enemies can easily locate them anywhere in the country;

(5)  Errors/misdirection in law in the Director’s failure to assess their fears and COI that upon their return to their country that they would face a terrible risk;

(6)  That there was no sufficient basis for the Director to conclude that A1 and his family members would not be at risk of being subjected to torture and/or CIDTP upon refoulement;

(7)  Procedural impropriety in the Director’s failure to consider psychological harm due to the issuance of multiple death threats against the Applicants from their enemies that it is not possible for them to relocate to other places as their enemies would still be able to find them anywhere in the country;

(8)  Error/misdirection in law in the Director’s incorrect examination of the facts in relation to legal principles with the purported requirement to exhaust all avenues when reporting public misconduct and/or corruption which spread everywhere for which they would not be able to protect themselves from their enemies;

(9)  Error/misdirection in law in the Director’s failure to give a proper explanation that the authority of their country would be able to protect them from their enemies that the Director should reconsider their claims on humanitarian grounds;

(10)  Procedural impropriety and/or illegality in the Director’s abdication of duty to properly examine the Applicants’ claims as they will face terrible risk in their home country;

(11)  That the Director failed to recognize that their home country is vast and large that it would be hard for them to live and survive in any part or relocating any place would be dangerous;

(12)  That the Director failed to consider the supporting documents and information submitted by the Applicants that show the true and current situation of their home country.

18.  These are however all just vague and bare assertions of the Applicants containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to their case, or in what way did the Director or the immigration officer err in the decision or that it was unfair or unreasonable, or how did the Director fail to properly consider their request or their intended subsequent claims or the relevant COI as to the current situation of their home country, or in what way was the Director wrong in the assessment of internal relocation option being available to the Applicants upon their return to India. As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicants, nor were they able to do so at the hearing of their application, I do not find any of them reasonably arguable for their intended challenge.

19.  I am of course mindful of the fact that while both A3 and A4 have since reached adulthood, A5 is just an infant at the age of only 2 ½ years old and is without legal representation in these proceedings as required under Order 80 rule 2 of the Rules of the High Court, Cap 4A, although he did, together with his parents and siblings, have legal assistance and representation from DLS in their request to make a subsequent claim before the Director, and similarly as in the case of his elder siblings A3 and A4 in their previous claims, I do not find any underlying matter that might support his potential minor-specific non-refoulement bases but which had not have been properly considered by the Director in the assessment and determination of his request to make a subsequent claim through his parents, and as I do not find any merit in his intended application for judicial review, I shall accordingly treat the absence of legal representation for A5 in his present application as a mere irregularity as held in the case of Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and discussed in Fabio Arlyn Timogan.

20.  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 procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicants’ request to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I refuse to grant leave and accordingly dismiss their 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