SATNAM SINGH v. DIRECTOR OF IMMIGRATION

HCAL 838/2024

[2024] HKCFI 2620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 838 OF 2024

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration dated 14 May 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 167 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap 115 (the “Ordinance”).

2.  The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process.

3.  On 10 July 2024, the applicant appeared before the Court and asked for an adjournment because he had applied for legal aid with the Director of Legal aid (“DLA”). The Court acceded to his request and adjourned the hearing to a date not before 42 days from the date of hearing.

4.  At the resumed hearing on 2 September 2024, the applicant appeared and produced a letter from the DLA, in which it was said that his previous application was refused and his appeal to the Master of the High Court will take place on 4 November 2024. He asked for a further adjournment.

5.  The Court considered the merit of his case. He admitted that he relied upon the same reasons in his previous claim and one further reason, being that his wife is a Christian and they will be killed by the Sikh people if they return to India. However, he has no country of origin information to verify this issue.

6.  In the circumstances, this Court considered that his application has no merit and refused to adjourn the matter further.

The procedural history

7.  The applicant is a national of India. He came to Hong Kong on 4 April 2014 as a visitor. He overstayed and was arrested by the police on 19 April 2014. He made a claim for non-refoulement the day after, but then withdrew it on 11 September 2015. In April 2016, he re-activated his claim for non-refoulement.

8.  His non-refoulement claim in his previous claim is on all applicable risks^[1] for the reasons that if refouled, he will be harmed or killed by his paternal uncle, Kuldeep Singh because of a family land dispute.

9.  The Director rejected his application for the reason that his claim was not substantiated. His appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) was dismissed by the Board. The Board did not accept his evidence on the facts of his claim. Furthermore, the Board found that he had failed to show that any treatment he would face would attain a minimum level of severity, or that there was any state acquiescence. It therefore dismissed his appeal.

10.  He applied to the Court of the First Instance for leave for judicial review of the Board’s decision. The Court of the First Instance refused his application. He pursued the matter all the way to the Court of Appeal and the Court of Final Appeal. The Court of Final Appeal refused his application for leave to appeal to the Court of Final Appeal on 16 April 2024.

11.  He applied by way of a written letter dated 13 December 2023 and other undated letters to the Director for a subsequent claim.

12.  By the Director’s Decision, the Director refused his application.

The subsequent claim application

13.  Under section 37ZO of the Ordinance, he has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realist prospect of success.

14.  Through his duty lawyer, he has submitted additional materials in support of his application to the immigration officer. The additional materials are that he had married a Filipino woman, who is a Christian. He belongs to Sikh religion. His family advised him not to return to India because the BIP Party and Hindu people would kill him. They had done this before in India. Besides, his uncle Kuldeep still holds grudges against him.

15.  The immigration officer assessed his application on the available information and found that his allegation that his uncle was still holding grudges against him remained unchanged, which had been considered in his previous claim as unsubstantiated [11]. The immigration officer said that his marriage with a Christian wife in Hong Kong was not raised in his previous claim and further found:

“12. … …there are no concrete and objective evidence adduced to substantiate your claim that the Sikh community in your locality in India or the religious fanatics as claimed is and will harm or even kill you for your marriage with a Christian in Hong Kong if you return to India….”

16.  The immigration officer was not satisfied that there had been a change of circumstances since his previous claim was finally determined and such change, if any, when taken together with the previous claim, would give the subsequent claim a realistic prospect of success. The Director therefore rejected his application for subsequent claim.

The application for leave to apply for judicial review application

17.  The applicant has filed Form 86 on 27 May 2024 to apply for leave for judicial review of the Director’s Decision.

18.  In the affirmation in support of his application, the applicant says that he and his 2 children do not want to leave Hong Kong and it will be dangerous for them to return to India. He did not raise any specific ground to challenge the Director’s Decision.

Discussion

19.  The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact-finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

20.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that he relied upon the same facts in his previous claim and the additional ground of marriage with a Christian in Hong Kong in support of his application for subsequent claim. The immigration officer has considered the additional ground and, for the reasons above, rejected it.

21.  The applicant has raised no valid ground to challenge the Director’s Decision.

22.  There is no reasonable prospect of success in his intended application for leave for judicial review of the Director’s Decision.

23.  I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The RPO

24.  The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his previous claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against him. See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.

25.  RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Direcctor of Immigration [2021] HKCFI 1991, by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021, § 9 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129, § 25.

26.  In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance is irrelevant so far as his intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.

27.  For this reason, the Court has called upon the applicant to appear before it to show cause why RPO should not be made against him. The RPO was explained to the applicant before the hearing. When asked whether he had anything to say about the proposed RPO, he said he had nothing to say.

28.  I am therefore satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong only. I shall therefore make the RPO in terms below:

(1) The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court and any appeal, including this Order, without leave of the Court of First Instance.

(2) All applications for leave under paragraph (1) shall be made to the Deputy High Court Judge K.W. Lung or in his absence, the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List.

(3) At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of her intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with the said application for leave.

(4) Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the Court written representations regarding the same.

(5) All applications made pursuant to this order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the Court should otherwise direct.

(6) If the Applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the Court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the Court for a decision as to whether they should be permitted to continue or should be dismissed.

(7) Notice of each decision by this Court or the designated Judge made pursuant to this order be given in writing to the Applicant and to each intended defendant or respondent named in the fresh proceedings.

(8) Whether or not any fresh proceedings are brought to the notice of the Court, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly.

(9) No more than one leave application under paragraph (1) may be made by the Applicant within any period of 3 months.

(10) No appeal shall lie from a decision of the Judge granting or refusing leave within this Order unless leave to appeal has been granted by the Court.

(11) This order shall cease to have effect at the end of 5 years from the date of this order.

(12) A copy of this Order shall be sent to the Registrar of the High Court.

DISPOSTION

29.  The applicant’s application is dismissed.

30.  RPO in terms of paragraph 28 be made against the applicant.