Manveer Singh v. Director of Immigration
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HCAL 357/2024 [2024] HKCFI 1739 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 357 OF 2024
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 Bruno Chan: Leave to apply for judicial review be refused. 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 (“the Director”) dated 19 January 2024 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 applicable grounds and that his subsequent appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision was subsequently withdrawn by the Board at his own request in writing of his wish to return to his home country. 2.The Applicant is a 35-year-old national of India who had previously entered Hong Kong illegally on 31 October 2023 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the local supporters of Bharatiya Janata Party (“BJP”) for being a supporter of their rival Indian Congress Party (“INC”) and/or by the Indian authorities for being involved in some mass brawl between supporters of the 2 rival parties in 2015 and/or for being one of the contractors for using sub-standard materials in the building of a bridge in his home village which had subsequently collapsed under heavy rain.Previous Non-Refoulement Claim 3.By a Notice of Decision dated 3 August 2018, the Director rejected the Applicant’s previous claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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 decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the local supporters of BJP or the local Indian police upon his return to India as low due to the absence of any past ill-treatment from them, that there is no evidence of any intention of the BJP members to harm or kill the Applicant or to specifically target him for any political reasons given that he was just an ordinary INC supporter without holding any official post in the party, and that in any event in the absence of 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 1.28 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 and Mumbai where it would be difficult if not impossible for those local BJP supporters to locate him, while there is also no reliable evidence of any adverse interest of the Indian police or authorities in him or of any charge or prosecution to be brought against him for either of his claimed criminal offences given the fact that he was able to leave the country without any problem, and that even if he is to be charged and prosecuted for those offense that over any offence in accordance with the existing law of India that relevant COI show that he would be entitled to due process and legal representation to defend those charges in a fair trial under the current legal and judicial systems of India that he would be considered as a fugitive of the law not entitled to any non-refoulement protection that his claim for non-refoulement protection failed on all applicable grounds. 5.On 13 August 2018 the Applicant lodged an appeal to the Board against the Director’s decision, but before it could be heard by the Board, the Applicant on 25 June 2019 in writing applied to withdraw his appeal stating that it was safe for him to return to his home country, whereupon the Board by a decision dated 22 July 2019 directed that his appeal be withdrawn upon being satisfied that his application to withdraw his appeal was freely sought, that he understood the consequences of his withdrawal, and that there was good reason for his proposed withdrawal in that it was safe for him to return to India, and that the Board also confirmed the Director’s decision. 6.The Applicant did not bring any further legal challenge of either decision of the Director or the Board, and on 29 July 2019 he was repatriated to India. Request To Make Subsequent Claim 7.However, some 4 years later on 31 October 2023 the Applicant sneaked back into Hong Kong and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he in writing requested to make a subsequent claim on the basis that upon returning to his home district in India, he resumed his support for INC and attended their local meetings and activities, but during the constituency election in 2023/24 when he was assisting BJP in their propaganda activities, he was again threatened by the local BJP supporters, and after being attacked by them on several occasions, he felt it was no longer safe to remain in India, and so in October 2023 he departed for China, and from there he again sneaked into Hong Kong and requested to make a subsequent claim for non-refoulement protection. 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:
9.Accordingly, on 28 December 2023 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”) in support of his request to make a subsequent claim on the basis as noted above. 10.By a Notice of Decision dated 19 January 2024 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same in nature as that of his previous claim of fear of harm from the local supporters of rival BJP which would not amount to a significant change of circumstances since his previous claim was determined, that he failed to provide any or sufficient fresh evidence in writing to satisfy the immigration officer that there has been such or 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 the unchallenged findings in his previous claim of the availability of state protection and reasonable internal relocation alternatives upon his return to India to similarly negate any such risk that may arise from his proposed subsequent claim. 11.On 22 February 2024 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 repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or procedural unfairness in the Director’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Director’s decision. 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 irrationality 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 to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given the correct finding by the Director that any risk which may arise from his proposed subsequent claim based essentially on his previous claim will similarly be negated or minimized by state protection and reasonable internal relocation being available to the Applicant upon his return to India, I therefore refuse to grant leave and accordingly dismiss his application. Dated the 9th day of July 2024
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
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