Chamkaur Singh v. Director of Immigration

HCAL 2433/2024

[2025] HKCFI 506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2433 OF 2024

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J U D G M E N T

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THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Director’s Decision dated 7 November 2024 (“the Director’s Decision”) refusing his claim on the applicable risks[1], which had been determined in his previous application under HCAL 1196 of 2020 (“the previous application”).

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 13 January 2025. He admitted that he relied on the same grounds in his previous claim in support of this application.

The procedural history

4.The applicant, aged 38, is a national of India. He came to Hong Kong illegally and was arrested on 3 August 2015. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) by a written representation of 5 August 2015 on the basis that, if refouled, he would be harmed or killed by Lakhwinder Singh (“LS”) and his people because of a land dispute.

5.The Director dismissed his claim for the reason that it was not substantiated. He appealed to Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board found that it accepted his evidence of a land dispute. But the land dispute is no longer existing. Furthermore, the Board dismissed his appeal for the reasons that state protection will be available to him and internal relocation is a viable option open to him. By its Decision dated 4 June 2020 (“the Board’s Decision”), the Board dismissed his appeal.

6.The applicant applied to the Court of the First Instance for leave to apply for judicial review of the Board’s Decision. However, before the court determined his application, he applied to the court to withdraw his application. The court acceded to his application and dismissed his application.

7.The applicant later applied to the court to re-open his appeal. The court dismissed his application. He appealed to the Court of Appeal, but he was out of time. His application for extension of time for his appeal was dismissed by the Court of Appeal because he failed to show merit in his application.

8.By letter undated, the applicant applied to the Director for making a subsequent claim for non-refoulement protection. By the Director’s Decision, the Director refused his application.

The subsequent claim application

9.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.

10.In support of his subsequent claim, the applicant submitted to the immigration officer supplementary materials such as his marriage certificate, a card and copy of letter from the Legal Aid Department. Having considered the additional materials, the immigration officer remarked:

“14. All the available information/evidence have been carefully considered. In your previous claim, you claimed that if you returned to India, you would be harmed or even killed by LS and his people due to a land dispute. Such risk from LS and his people was thoroughly assessed and considered by the Case Officer and the Board in the previous claim which was not accepted as substantiated (see paragraph 11 above). In the Request, there is no suggestion that you are still in fear of LS and his people or intend to rely on the same basis in the Request.”

11.The immigration officer had further found that the applicant now relies on the allegation that he has married a Chinese woman of a different religion. As he is a member of RSSB (Radha Soami Satsang Beas), he will be harmed by member of RSSB if he returns to India. The immigration officer rejected his subsequent claim for the reasons that (i) according to the country of origin information, RSSB will not harm its member for marrying a person of a different religion; (ii) his brother’s information that he will be harmed is only hearsay evidence which the Board will not give weight; (iii) he has made application for divorce and the (iii) state protection will be available to him if he returns to India; and (iv) internal relocation is viable.

12.For those reasons, the immigration officer was not satisfied that the applicant’s subsequent claim application satisfied the conditions under section 37ZO of the Ordinance. He refused his application for subsequent claim.

Application for leave to apply for judicial review of the Director’s Decision

13.The applicant filed Form 86 on 11 December 2024 for judicial review of the Director’s Decision.

14.In his affirmation in support of the application, the applicant did not raise any specific ground to challenge the Director’s Decision.

Discussion

15.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).

16.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted that he relied on the same grounds of his previous claim.

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

18.The applicant fails to show that he has any realistic chance of success in his intended judicial review of the Director’s Decision.

19.I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The RPO

20.Although the applicant has made a second application for non-refoulement, he has not totally relied on the same reasons in his previous claim. He has relied an additional reason that he may be harmed or killed by RSSB because he had married a Chinese woman.

21.For this reason, the Court refrains from imposing any RPO on the applicant. However, the Court will advise the applicant not to make any further non-refoulement claim on the same reasons in the previous claim or this subsequent claim or the Court may impose RPO on him if he does so.

DISPOSITION

22.The applicant’s application is dismissed.

The applicant appeared in person.