Kuldip Singh v. Director of Immigration

HCAL 2280/2020

[2025] HKCFI 4883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2280 of 2020

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:

1.   Form 86 be amended as follows:- (1) the Director of Immigration be named as the only Putative Respondent; (2) there be no Putative Interested Party; and (3) the present application is only in relation to the Decision of the Director of Immigration dated 2 November 2020.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 18 November 2020 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Director of Immigration (the “Director”) dated 2 November 2020 (the “Director’s Decision”).

2.Under the Director’s Decision, the Director refused to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”).

3.In the Form, the Applicant originally sought to challenge the previous decisions of the Director and the Board, in addition to the Director’s Decision.  In so far as the previous decisions of the Director are concerned, they had already been superseded by the Board’s decision dated 24 April 2017 (the “Board’s Decision”).  Such Director’s decisions are not susceptible to judicial review once appeal to the Board had been pursued (see Re: Moshsin Ali [2018] HKCA 549, at §§31-45). 

4.In so far as the Board’s Decision is concerned, it had already been the subject matter of another leave application which was ultimately dismissed by this Court and by the Court of Appeal (see [2018] HKCFI 1162, [2018] HKCA 781, [2019] HKCA 294). 

5.By the Order of the Practice Master dated 18 November 2020, the present Leave Application is only against the Director’s Decision.  Accordingly, I make an order to amend the Form to reflect the aforesaid.

6.In the Form, the Applicant named both the Board and the Director as the proposed respondents.  The Applicant further named the Board and the Immigration Department as the proposed interested parties.  As the present Leave Application is only in relation to the Director’s Decision, the Director should be the only proposed respondent.  The Board does not need to be an interested party in the application.  In the premises, I also make an order to amend the Form in this regard on the court’s own motion.

7.The Applicant requested an oral hearing for the application.  The hearing took place on 1 September 2025 (the “Hearing”) and the Applicant attended in person.  At the Hearing, the Applicant confirmed that he understood the above, in particular that the present application is only in respect of the Director’s Decision.  The Applicant however said he had nothing to say in respect of the Leave Application, save that he cannot go back to India and that he got married in Hong Kong.   

Discussion

8.Section 37ZO of the Immigration Ordinance (Cap. 115) provides limitation on making a subsequent claim 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)  f 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.The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision maker is the Director.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Director due to the seriousness of the issue at hand, the Court should not usurp the role of the Director.  Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of 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. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

10.The Applicant did not provide any grounds in support of the Leave Application in the Form.  In the supporting Affirmation, the Applicant stated that he is seeking leave to apply for judicial review against all decisions made against him in relation to his non-refoulement claim.  This is misconceived because as explained above, the present Leave Application is only in relation to the Director’s Decision.

11.The Applicant contended that the Director had erred in determining that there is no realistic prospect of success, and that the Director had applied an unnecessarily high threshold in determining whether there is realistic prospect of success.  I have considered the Director’s Decision in detail.  I do not find any error of law, procedural unfairness or irrationality.  Neither has the Applicant been able to demonstrate any of the same.  There is nothing to indicate that the Director had applied the wrong test in determining whether there is any realistic prospect of success.

12.The Applicant then claimed that the Director had not taken his unique situation into account fairly and carefully.  He further contended that the Director had erred and was biased, and that the Director did not rely on any facts of the case and was “purely targeting [him] for a situation that they have no experienced first hand”.  Finally, the Applicant claimed that the Director’s Decision was made based on the wrong case management power, and that the Director merely wanted to dispose his case as quickly as possible and did not carefully consider all the information and evidence available.

13.I do not consider any of the Applicant’s contentions meritorious.  They are all vague and bare assertions without particulars and elaboration.  I further note that the Applicant did not elaborate any of these points at the hearing on 1 September 2025, despite requesting an oral hearing and given the chance to make submissions.  Having carefully considered the Director’s Decision, I do not find any error of law, procedural unfairness or irrationality.  There is nothing to indicate that the Director had failed to take into account any relevant matters.  The Director was entitled to come to the conclusions based on the reasons given.  The Director’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational.  There is plainly no basis to say that the Director had failed to assess the Applicant’s claims properly.

14.In the premises, I am not satisfied that the Applicant’s intended challenge of the Director’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review.

15.Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me, as well as the grounds advanced by the Applicant.

Conclusion

16.In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.

Dated the 17^th day of October 2025.

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