Kathat Gopal v. Director of Immigration

HCAL 511/2024

[2024] HKCFI 1713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 511 of 2024

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 present in open court;

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

Leave to apply for Judicial Review be refused.

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 26 February 2024 (the “Director’s Decision”) refusing his subsequent claim of HCAL 2944 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

2.The applicant appeared before the Court on 29 April 2024.

3.He submitted that his claim is not the same as his previous claim because in his previous claim, his enemies were Goham Singh, Hari and Deep. But this time his enemies are also Dinesh, Raju and Suriya Prakash. The dispute with them arose after he returned to India in 2021. However, he agreed that the cause is the same, i.e. land dispute. The latter group was in relation to a piece of land adjacent to the piece of land of the previous claim and this group of people are related to the other group of people in the previous claim.

The procedural history

4.The applicant is a national of India. He attempted to enter Hong Kong from Macau twice on 27 June 2015 and was refused permission to land in Hong Kong. On the second attempt, he lodged a non-refoulement claim by written representation dated 28 June 2015. His non-refoulement was assessed on all applicable risks[1].

5.His previous claim is based upon his fear that, if refouled, he would be harmed or killed by Goham Singh and his friends Hari and Deep because of a land dispute with Goham.

6.By Notice of Decision dated 4 September 2015, the Director rejected his claim on Torture risk, BOR 3 risk and Persecution as they were not substantiated. He appealed to the Board. By the Board’s Decision dated 30 November 2015, the Board dismissed his appeal.

7.His claim on BOR 2 risk was also rejected by the Director by Notice of Further Decision dated 16 February 2017. He appealed to the Board. However, he was out of time. The Board refused to extend time for him to file the notice of appeal on 11 December 2018. 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 on 19 November 2020.

8.On 24 November 2020, he appealed to the Court of Appeal against the Court of the First Instance’s decision.

9.By letters respectively dated 22 February 2021 and 1 March 2021, he agreed to return to India. On 4 March 2021, he was repatriated to India.

10.On 31 October 2023, he sneaked into Hong Kong from Mainland China and as arrested on the same day.

11.By letter dated 10 November 2023, he made the subsequent claim application.

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 realistic prospect of success.

14.The applicant submitted a statement in support of his subsequent claim application, which the immigration officer had considered and he had summarized the issues below:

15.The immigration officer was aware of the new grounds as raised by the applicant in support of his subsequent claim application. The immigration officer refused the applicant’s application for the reasons below.

“13. All available information/evidence have been considered. … we take that you no longer rely on the previously alleged fear of Deep and Indian police due to the false case lodged against you by Goham which having been assessed in your previous claim (see paragraph 10 above). In gist, you are currently in fear that if you are returned to India, you will be harmed or killed by Goham, Hari, Dinesh, Raju and Suriya Prakash (“your enemies”) because of the land dispute. It is considered that your fear of Goham and Hari remains unchanged and the land dispute had already been submitted and thoroughly considered in your previous claim (see paragraph 10 above) which was not accepted as substantiated. In any event, the nature of your problem with Dinesh, Raju and Suriya Prakash is the private land dispute and it is the same as the one you raised in your previous claim. It is considered that your claimed fear of Dinesh, Raju and Suriya Prakash in still originated from the land dispute, which you have already mentioned and that has been thoroughly considered in your previous claim which was not accepted as substantiated.”

16.The immigration officer further found that state protection would be available to the applicant [16] and internal relocation is a viable option for him [17]. The immigration officer therefore found that it is not accepted that there has been a significant change of circumstances since his previous claim was finally determined; and the change, if any, when taken together with the materials previously submitted in support of his previous claim, would give the subsequent claim a realistic prospect of success.

17.The claimant’s application for subsequent claim was therefore rejected.

The application for leave to apply for judicial review application

18.The applicant has filed Form 86 on 26 March 2024 to apply for leave for judicial review of the Director’s Decision.

19.The applicant has filed an affirmation, in which he said that if he returns to his country, his life will be in danger. He has attached the Director’s Decision to his affirmation.

Discussion

20.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).

21.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the reason for this subsequent claim is similar to those reasons in support of his previous, though the land is different, so are the enemies. But he agreed that the enemies in his previous claim and the enemies in this subsequent claim are related.

22.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

23.The applicant agreed before this Court that the nature of his fear is the same, that is to say, his enemies from land dispute, though there are two adjacent pieces of land. The enemies, as he said, are related.

24.In my view, the immigration officer’s analysis is right that the second dispute does not form a significant change of circumstances that, when considered together with his previous claim, will give a realistic chance of success in his subsequent claim.

25.There is no realistic prospect of success in the applicant’s intended judicial review of the Director’s Decision.

CONCLUSION

26.I refuse to grant leave to the applicant to apply for judicial review of the Director’s Decision. Accordingly, I dismiss the applicant’s application.

Dated the 18^th 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