HARVINDER SINGH v. DIRECTOR OF IMMIGRATION

HCAL 542/2018

[2020] HKCFI 1836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 542 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a national of India who arrived in Hong Kong on 29 December 2013 with permission to remain as a visitor up to 12 January 2014 when he did not depart and instead overstayed and was arrested by police on 15 January 2014.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle over a land dispute.  He was subsequently released on recognizance pending determination of his claim.

2.  On 16 September 2015 the Applicant was granted legal assistance with representation from the Duty Lawyer Service (“DLS”).

3.  On 2 November 2015 the Applicant submitted through DLS a completed Non-refoulement Claim Form (“NCF”) to the Immigration Department.

4.  However, during the process of arranging screening interview with the Applicant, the Immigration Department was informed by DLS by a letter dated 18 February 2016 of no further instruction to act for the Applicant, and by a letter dated 23 May 2016 the Applicant requested to cancel his non-refoulement claim because it was safe for him to go home, and hence no further action was taken by the Immigration Department of his claim.

5.  On 6 June 2016 the Applicant wrote to the Immigration Department to request to re-open his claim as it was dangerous for him to go home after he had been informed by his family that his uncle would kill him upon his return to India.

6.  By a letter dated 14 June 2016 from the Immigration Department to his last reported address, the Applicant was required to provide more information regarding his request to re-open his claim for consideration by an immigration officer, but the letter was later returned by the post office marked “no such address” on the envelope, and subsequent attempts by the Immigration Department to contact him were also in vein.

7.  By a Notice of Decision dated 20 July 2016 the Director of Immigration (“the Director”) found on the materials and information previously provided by the Applicant including his NCF that any change of circumstances which could not reasonably have been foreseen by him when taken together with the materials previously submitted that it was not accepted that the prospect of success of his claim would be increased, and therefore refused his request to re-open his claim. 

8.  On 22 August 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 9 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.

9.  However, before the Board delivered its decision, the Applicant on 3 April 2018 filed a Form 86 for leave to apply for judicial review of the decision of the Director but did not request any oral hearing for his application.  Eventually on 20 May 2019 the Board accepted the Applicant’s explanation that he never received the Director’s request for him to provide further information regarding his request to re-open his claim, and accordingly allowed his appeal for his claim to be re-opened, and as I understand it has been referred back to the Director for assessment.  As such and in the premises, it is therefore not necessary for me to deal with this application, and accordingly it is hereby dismissed.

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