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HCAL 883/2025
[2025] HKCFI 5857
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 883 OF 2025
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BETWEEN
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Jatinder Singh |
Applicant |
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and |
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Director of Immigration |
Putative |
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Respondent |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated 10 April 2025 and filed on 11 April 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 8 January 2025 (“the Director’s 2025 Decision”).
2. By way of a letter dated 30 September 2024, which was received by the Director on 4 October 2024, the applicant requested to make a subsequent claim (“the Request”) for non-refoulement protection under the Unified Screening Mechanism (“the USM”). Having carefully considered the Request, the Director decided that the applicant could not make a subsequent claim under the USM and hence issued the Director’s 2025 Decision.
Amendment
3. In Form 86, the applicant named “Immigration Department” as the proposed respondent, when the Director should be so named.
4. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Director of Immigration”.
Late application
5. By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Director’s 2025 Decision was made.
6. However, the applicant filed his Form 86 on 11 April 2025, which was 3 months and 3 days after the Director’s 2025 Decision (made on 8 January 2025). The applicant was hence late for 3 days in making the Leave Application.
7. This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:
(i) the length of the delay;
(ii) the reason for the delay;
(iii) the merits of the intended application; and
(iv) any prejudice to the putative respondent and to public administration.
8. The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. A delay of just 3 days is not significant and this court is not going to take issue on that. However, there is no merit in the intended judicial review at all as discussed below.
9. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.
10. However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.
Procedural history of the applicant’s previous non-refoulement claim
11. The applicant was born in India on 15 May 1996. He first arrived in Hong Kong in January 2010 together with his mother and two siblings as visitors. They overstayed and his mother made a torture claim on behalf of herself and her three children including the applicant in February 2010.
12. By way of a Notice of Decision dated 29 April 2013 (“the Director’s 2013 Decision”), the Director rejected their torture claim. They appealed against the Director’s 2013 Decision to the Torture Claims Appeal Board (“the Board”) in May 2013. The Board rejected their appeal by its decision dated 20 June 2014 (“the Board’s 2014 Decision”).
13. They then made a non-refoulement claim under the USM in July 2014, which was assessed by the Director based on all the applicable grounds (except Torture Risk[1]), namely BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4].
14. By way of a Notice of Decision dated 28 October 2016 (“the Director’s 2016 Decision”), the Director rejected their non-refoulement claim. As their Torture Risk had already been assessed and finally determined, it was not necessary for the Director to deal with it again in the Director’s 2016 Decision.
15. On 8 November 2016, the applicant filed a Notice of Appeal/Petition to the Board in respect of the Director’s 2016 Decision. However, by his letter dated 10 January 2018, the applicant applied to withdraw the said appeal/petition.
16. In reply to the applicant’s withdrawal application, the Board issued a letter dated 13 February 2018 (“the Board’s 2018 Decision”), in which the Board gave the directions that the applicant’s appeal/petition was dismissed and the Director’s 2016 Decision was confirmed.
17. The applicant was then repatriated to India on 26 November 2019.
The applicant’s subsequent claim
18. On 26 August 2024, the applicant was arrested by the Hong Kong police for illegal remaining and was remanded at the Lai Chi Kok Reception Centre.
19. As aforesaid, the applicant made the Request on 30 September 2024. The applicant was assisted by the Duty Lawyer Service (“the DLS”). By a letter of 12 December 2024, the DLS submitted the applicant’s further information to the Director in support of the Request.
20. The applicant claimed that if refouled to India, he would be harmed or killed by militants or terrorists of the Babar Khalsa and the Khalistan Liberation Force in Punjab (“collectively “the Enemies”), the reason being that the applicant’s maternal grandfather had previously suppressed the Enemies in his official capacity as a police inspector in the past.
21. The applicant also claimed that his wife and two children were living in Hong Kong and they had been apart for a long time. His family depended on him for support and companionship and his presence was essential to them. If he were to return to India, it would result in a separation of his close family. The applicant further stated that in late 2019, he returned to India to obtain a valid Indian passport and proceed with his application for entry for residence as a dependent in Hong Kong, and he was waiting for his visa application to be approved.
22. After consideration of the Request, the Director refused the Request by way of the Director’s 2025 Decision.
The applicant’s case
23. In the applicant’s first torture claim and non-refoulement claim, his mother was making the claim on his behalf. However, the basis of the claim at that time was the same as the subsequent claim, ie he feared harm from the Enemies because of his maternal grandfather’s suppression of the Enemies.
24. The applicant only introduced two new matters in the Request. The first matter is concerning the applicant’s claim that on 1 March 2024, he and his cousin encountered around 8 to 10 unknown men armed with swords, hammers, axes and other weapons, while they were taking a break during fish farming in India. The applicant escaped but his cousin was taken away. His cousin was found dead two days later. The applicant claimed that he received a call from an unknown man on 5 March 2024 telling him that they would find him and kill him. The applicant believed that the Enemies had discovered his location, and they were the ones who attempted to attack him and were responsible for murdering his cousin. The second matter is the applicant’s claim that his repatriation would result in a separation of his close family in Hong Kong.
Oral hearing
25. This court fixed an oral hearing of the Leave Application on 4 November 2025 and the applicant was present at the hearing.
26. When this court asked the applicant for the grounds of his intended judicial review, he merely repeated some of the factual background that were presented to the Director for making the subsequent claim. The applicant also said that he could produce further proof.
27. The applicant had asserted several grounds in his supporting affirmation dated 10 April 2025. However, when this court asked the applicant to elaborate on the grounds, he just said that his life was still in danger, he did not want to go back and he had a wife and two daughters who are permanent residents in Hong Kong.
Grounds for judicial review
28. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
29. The applicant did not assert any ground for his intended judicial review in Form 86. In his supporting affirmation dated 10 April 2025, the applicant alleged that he was a genuine non-refoulement claimant who faced all these dangerous problems, harassment and torture in his country and that the problems were getting more and more life-threatening day after day. He also complained that the Director rejected his claim without any proper inquiry and without carefully understanding his situation.
30. The contents as stated above were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Director’s and/or the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations.
31. As aforesaid, the applicant did not elaborate on any of these grounds at the oral hearing before this court.
Discussion
32. First of all, the applicant’s assertion that the Director rejected his claim without any proper inquiry and without carefully understanding his situation was totally without any specificity.
33. The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.
34. Thus, none of the grounds that were contained in his supporting affirmation could establish any valid ground to challenge the Director’s 2025 Decision when they are so vague and general without any requisite particulars related to the applicant’s case.
35. In any event, the Director did consider carefully the applicant’s previous claim and the two new matters raised in the subsequent claim. The Director gave very detailed analysis and reasoning in rejecting the Request in the Director’s 2025 Decision. The allegation that the rejection was made without any proper inquiry and without carefully understanding his situation is totally unfounded.
36. The making of a subsequent claim is stipulated by Section 37ZO of the Immigration Ordinance, Cap 115, which reads as follows:-
“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.”
37. It is clear that the Director had fully complied with the above provisions when considering the Request.
38. The Director gave detailed reasons in paragraphs 11 to 14 of the Director’s 2025 Decision for its conclusion not to accept that the applicant’s alleged risk of harm in the Request upon his return to India constituted a significant change of circumstances warranting his making of a subsequent claim. This court agrees with the Director’s conclusion and the reasoning supporting it. Thus, there was no significant change of circumstances that would enable the applicant to make a subsequent claim.
39. The Director also considered the applicant’s claim based on the separation with his wife and two daughters. The Director noted that the applicant did not adduce any evidence, such as birth certificates and marriage certificate, in support of that. Even taking the applicant’s case to its highest, the harm to the applicant arising from such separation was not a basis on which he could establish his non-refoulement claim. Hence, this ground would not give the subsequent claim a realistic prospect of success.
40. As held by the Court of Final Appeal in Comilang & Ors v Director of Immigration [2019] HKCFA 10, family unity rights were not a bar to refoulement of foreign nationals without a right of abode, even when they have a spouse and children who are permanent residents of Hong Kong. Thus, this court finds nothing wrong for the Director to come to the said conclusion that separation of his close family was not a basis on which he could establish his non-refoulement claim.
41. Having considered the applicant’s Request, and having rigorously examined the Director’s 2025 Decision with anxious scrutiny, this court is satisfied that the Director 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 analyzed the evidence with due care. The Director observed a very high standard of fairness. This court finds no errors of law in the Director’s 2025 Decision or procedural unfairness in the making of that decision. The Director’s 2025 Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational.
42. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
43. For reasons aforesaid, the Leave Application is dismissed for being made out of time and devoid of merits.
Dated the 2nd day of December 2025
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( Irene LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 2 December 2025
Applicant’s ref. no:
Nil
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
2 December 2025
Director of Immigration
Putative respondent’s ref. no.:
L/M (32198) in ImmD RA 7/37/C (formerly RBCZ/2607/14 & RBCZ/286/10)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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