Jagpal Singh v. Director of Immigration

HCAL 850/2021

[2023] HKCFI 1737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 850 OF 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

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

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“Director”) dated 26 May 2021 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by the Director under the Unified Screening Mechanism (“USM”) on all the applicable grounds, and that his appeal to the Torture Claims Appeal Board (“Board”) had been subsequently withdrawn at his own request whereupon he had been repatriated to his home country.

2.The Applicant is a 31-year-old national of India who first arrived in Hong Kong on 30 March 2012 as a visitor with permission to remain as such up to 13 April 2012 when he did not depart and instead overstayed, and was arrested by police on 14 April 2012. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his girlfriend’s family who objected to their relationship, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.

Previous Non-Refoulement Claim

3.By a Notice of Decision dated 16 January 2018 the Director rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

4.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there would be any real and substantial risk of him being harmed or killed by his girlfriend’s family upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Delhi where it would be difficult if not impossible for anyone to locate him.

5.The Applicant’s appeal against the Director’s decision was then dismissed by the Board on 8 March 2018 at his request for its withdrawal and upon being satisfied that his withdrawal request was freely sought, and that he fully understood the consequences of the withdrawal, whereupon he was repatriated to India on 19 March 2018.

6.Upon returning to his home district in India, the Applicant married his wife arranged by his family, but continued his relationship with his former girlfriend, and as a result both the family of his wife and his girlfriend had threatened and assaulted him, and fearing that his life was at risk again the Applicant departed India on 31 December 2019 for China, and from there he later sneaked into Hong Kong on 8 October 2020, and upon his subsequent arrest by the police on 21 October 2020, he was then referred to the Immigration Department for investigation.

Request To Make Subsequent Claim

7.On 25 October 2020 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that if refouled to India he will be harmed or killed not just by the family of his girlfriend but also by the family of his wife as well.

8.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(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.”

9.Accordingly, on 16 February 2021 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”).

10.By a Notice of Decision dated 26 May 2021 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given that any risk of harm from his wife’s family even if real is similarly a private personal dispute and will also be negated by state protection and internal relocation available to the Applicant upon his return to India as found in his previous claim.

11.On 9 June 2021 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he just complained that the Director rejected his claim without any proper inquiry or any careful understanding of his situation in his home country but without providing any relevant details or particulars or elaboration as to how it was so.

12.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim given the fact that the nature and basis of such risk if real is the same or similar as that of his previous claim.

13.Furthermore, the Applicant on 15 May 2023 filed an affirmation requesting to “close” his application as he now wants to go back to his home country.

14.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his desire to return to his home country, I accordingly dismiss his leave application.

Dated the 5^th day of July 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