Subba Sosal v. Director of Immigration

HCAL 1591/2021

[2021] HKCFI 3766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1591 of 2021

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

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 27 October 2021 (the “Director’s Decision”) refusing his subsequent claim of HCAL 1051 of 2018 (the “original 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.Two days before the hearing, the applicant filed an affirmation to apply for withdrawal of his application, saying that all his problems in his country had finished and his wife is very sick.  He wants to return to his home as soon as possible.

4.There is no reason not to allow his application and his application will be dismissed on this basis.  However, as I have considered the merits of his case, I shall, nevertheless, set out my observations below in case he may change his mind and apply to restore his application, which had happened in other cases.

The procedural history

5.The applicant is an illegal immigrant from India. He raised non-refoulement claim with the Immigration Department by written signification on 9 September 2015 on the grounds of Torture risk under the Ordinance; BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance; BOR 3 risk under Article 3 of the Bill of Rights Ordinance, Persecution risk under the Refugee Convention. 

6.His claim was rejected by the Director by a Notice of Decision dated 16 February 2017.

7.He appealed to the Torture Claims Appeal Board (the “Board”).  By its Decision dated 25 May 2018 (the “Board’s Decision”), the Board dismissed his appeal.

8.He applied for leave for judicial review of the Board’s Decision and the application was dismissed by the Court by its Order dated 15 March 2019 (the “Court’s Order”).

9.He appealed against the Court’s Order to the Court of Appeal and his application was dismissed by the Court of Appeal on 6 August 2019.

10.His Notice of Motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal was dismissed by the Court of Appeal on 6 November 2019.

11.His application for leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 18 March 2021.

12.He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 15 April 2021.

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

The subsequent claim application

14.The factual basis of his claim is that if refouled, he will be harmed or killed by members of Sikkim Democratic Front (“SDF”) in his area, including Ashish Rai, one of the counsellors of the Panchayat (meaning council) in his area if he returned to India because he quitted from SDF and joined their opposition party, Sikkim Krantikari Morcha.

15.The Director found that his claim was not substantiated.  He found that the level of risk of him being harmed or killed if he returned to India was low; that state protection was available to him and that internal relocation was an option open to him.

16.The Board affirmed the Director’s Decision.  It further found that the applicant failed to establish that he had well-found fear that he would be subjected to the torture risk, BOR 2 risk, BOR 3 risk and persecution risk if he returned to India.

17.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 realistic prospect of success.

18.In support of his subsequent claim, he said that his enemies are still looking for him.  They had gone to his house in India and caused mental stress to his father, who finally committed suicide.  He also learned from his friend in India that his enemies had fabricated a fake case against him.

19.The Director does not accept that those are significant change of circumstances as his threats arise from his original claim, which had been considered.  His enemies are the same and for the reasons they looked for him are the same.  Those grounds had been considered by the Director and the Board in his original claim.  Though his father’s suicide and the fake charge are not in the origin claim, they are hearsay evidence, which cannot be tested.  Such information, coupled with the original claim, would not give the subsequent claim a realistic prospect of success.

The application for leave to apply for judicial review

20.The applicant has filed an affirmation in support of his application.  He stated that he is a genuine asylum seeker.  He is lucky to have escaped from his country, otherwise he would have been killed. The Director is wrong as he has not gone to his country to understand the situations himself.

21.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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

22.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.  The applicant did not turn up as he had applied to withdraw his application.

23.It is quite clear that the applicant is re-litigating his original claim in his subsequent claim application.  His enemies are the same and they hold the same reasons for attacking him and his father.  His father’s commission of suicide and the fake charge do not change the nature of his claim.  The Director is right to hold the view that those circumstances do not constitute significant changes of circumstances that will give realistic prospect of his subsequent claim.

24.The applicant has no valid reason to challenge the Director’s Decision.

25.The Court does not find any error of law or procedural unfairness in the Director’s Decision.  The Director’s finding of the facts is not in any respect open to challenge as Wednesbury unreasonable or irrational.

26.Since there is no realistic prospect of success in his subsequent claim, I dismiss his application for leave to apply for judicial review of the Director’s Decision.

27.I shall refrain from making RPO order against him as he has applied to withdraw his application.  If he applies to restore his application or make other application on the same story, this Court will take the above issues into consideration in consider whether RPO should be imposed on him.

DISPOSITION

28.His application is dismissed.

Dated the 28^th day of December 2021

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