Avtar Singh v. Director of Immigration
Read the full judgment text of HCAL 1138/2022 on BabelCite. This High Court CFI judgment was delivered on 19 January 2023.
1. This is the applicant’s application for leave to apply for judicial review of the Decision of the Director of Immigration dated 27 September 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2249 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).
Cites 6 cases
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HCAL 1138/2022 [2023] HKCFI 187 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1138 of 2022
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge K.W. Lung:
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 September 2022 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2249 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.The applicant appeared before the Court on 24 November 2022. 4.The applicant submitted that he had applied for legal aid. The Director’s Decision is dated 27 September 2022. He filed Form 86 for judicial review on 24 October 2022. He applied for legal aid on 23 November, one day before the hearing. There was no acceptable explanation for his delay in applying for legal aid. The Court refused to exercise its discretion under section 15 and regulation 7A of the Legal Aid Ordinance, Cap.91 to adjourn the hearing. The procedural history 5.The applicant is an Indian national from Punjab. He arrived in Hong Kong on 9 February 2012 as a visitor. He became an illegal over-stayer since 24 February 2012. He was arrested by the police on 9 May 2012. Two days later, he lodged a torture claim, which has since been expanded to include non-refoulement protection on three applicable grounds of the BOR 3 risk[1], the persecution risk[2] and the torture risk[3]. 6.By Notice of Decision dated 27 November 2015 (“the Director’s First Decision”) on the above-mentioned risks and Notice of Further Decision dated 13 June 2017 (“the Director’s Second Decision”) on BOR 2 risk[4], the Director refused his claim. 7.The applicant appealed the Director’s First Decision to the Torture Claims Appeal Board. Having considered the applicant’s reasons, the Board dismissed his appeal by the Board’s Decision dated 25 May 2017 (the “Board’s Decision”). The applicant did not appeal against the Director’s Second Decision. 8.He applied for leave for judicial review of the Board’s Decision out of time and his application was dismissed by the Court of the First Instance on 21 April 2021 (“the Court’s Order”). 9.His application for appeal against the Court’s Order was dismissed by the Court of Appeal on 14 September 2021. 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 3 November 2021. 11.His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 21 June 2022. 12.He applied to the Director for making a subsequent claim for non-refoulement protection by letter dated 27 July 2022. 13.By the Director’s Decision, the Director refused his application. The subsequent claim application 14.The applicant claimed that if he were to be returned to India, he would be harmed or killed by members of the Akali Dal Party because he refused to join them. 15.The Director found that his previous claim was not substantiated. 16.He appealed the Director’s First Decision to the Board. The Board considered the evidence and was not satisfied with the applicant’s evidence. The Board considered the evidence vague and lacking in particulars to support his claims. It also considered the appeal failed independently for lack of credibility. Also, the Board had considered extensive Country of Origin Information (“COI”) from credible sources and was satisfied that state protection is available and internal relocation is a viable option to avoid the risk. 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 submitted to the immigration officer a statement, in which he stated that his former statement was prepared by his friend, which was not the whole truth. He also relies on the fact that he fears that if he returns to India, he will be killed by Harry Singh, who is the head of the ruling party Bharatiya Janata Party (“BJP”) and has been looking for him for a revenge. This is the information from his brother in India. 19.The Director considered the evidence and found that his evidence was hearsay evidence from his brother, on which the Director did not place much weight. Also, the Director considered that this new issue was never raised in his previous claim. There is no evidence to support his alleged facts on revenge. The Director did not believe his evidence on the new issue. However, the Director considered that even if his facts were accepted, he can still have state protection and internal relocation is a viable option for him. 20.The Director therefore found that the applicant relies upon the facts, which when considered together with his previous claim, will not give him a realistic chance of success in his subsequent claim. The Director dismissed the applicant’s subsequent claim application. The application for leave to apply for judicial review 21.The applicant has filed an affirmation in support of his application, in which he set out the following grounds:
DISCUSSION 22.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). 23.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. 24.Before me, the applicant said he did not have much to say. 25.The grounds in paragraph 21, supra do not assist his application. Ground a. and b. are his personal opinions or comments without any evidence to support. As to his complaint of having no screening interview for his new fresh case, it is the procedure provided under the Ordinance. In the previous claim, there had been an interview for the applicant. The Director has to consider his previous claim together with his subsequent claim in order to determine whether he is allowed to make his subsequent claim under the unified screening mechanism. The applicant did not raise the new facts in his previous claim. This is his deliberate decision because he signed his statement in support of his previous claim. The Director, for the reasons given, did not accept his evidence on the new facts. There is nothing amiss with the statutory provision for having no screening interview for his subsequent claim. Those reasons are not valid reasons to challenge the Director’s Decision. 26.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. The RPO 27.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. 28.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 Director 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. 29.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. 30.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. Upon my enquiry of what comments on the intended RPO, he said he had nothing to say. 31.I am 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:
DISPOSITION 32.The applicant’s application is dismissed. 33.RPO in terms of paragraph 31 be made against the applicant. Dated the 19th day of January 2023.
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 [1] This refers to the 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. [2] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. [3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. [4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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Cases cited in this judgment