Sandhu Rajinder Singh v. Director of Immigration

HCAL 2188/2025

[2025] HKCFI 6227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2188 OF 2025

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;

Order by Deputy High Court Judge Bruno Chan:

1.	Leave to apply for Judicial Review be granted;
2.	The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and
3.	The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent.

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 9 September 2025 refusing 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 (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds.   

2.The Applicant is a 33-year-old national of India who previously arrived in Hong Kong on 6 September 2013 but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by members of the political party Shiromani Akali Dal (“SAD”) in Punjab as he supported their rival and splinter group Shiromani Akali Dal (Amritsar) (“SAD (A)”).

Previous Non-Refoulement Claim  

3.The Applicant was born and raised as a Sikh in Tarn Taran, Punjab, India where he supported SAD(A), the more radical splinter group of SAD, and that on one afternoon in mid‑2013 he and his fellow supporters were attacked by a group of SAD supporters that he suffered lacerations all over his body and with a fractured wrist that he subsequently required medical treatments in a local hospital.

4.After the assault he fled to Tehsil Patti to take shelter in a cousin’s place, and after receiving further threats from the SAD people, he then fled to Fairdkot City where one day his motorbike was struck by a jeep driven by some SAD supporters that he fell but managed to make his escape home without serious injuries, and on 5 September 2013 he departed India for Hong Kong and raised his non-refoulement claim for protection.         

5.By a Notice of Decision dated 27 September 2018 the Director rejected the Applicant’s 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”).

6.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 will be any real risk of him being ill-treated by those SAD people (named SADB in the decision) upon his return to India due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm or kill him, 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 1.2 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 young adult with working experience to move to other part of the country away from his home district in large cities such as Mumbai where it would be difficult if not impossible for those SAD people to locate him.

7.On 10 October 2018 the Applicant lodged an appeal to Board against the Director’s decision, and for which he attended an oral hearing on 6 April 2020 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 22 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of being a Punjabi Sikh who had actively supported SAD(A) that caused him to come to the attention of the local members of rival SAD that he was attacked by them on several occasions that he fled from his home village and eventually departed India for Hong Kong, and that at the time of his departure that he was a person of adverse interest to the local SAD supporters in the Amritsar area that he left the country in fear of being subjected to serious harm by those people, but found no evidence of any official involvement in those attacks that state protection would be available to him upon his return to India as well as internal relocation alternatives for him to move safely to other areas away from his home village to large cities without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.

9.The Applicant’s application for leave to apply for judicial review of the Board’s decision was subsequently withdrawn at his own request by DHCJ P. Li on 19 February 2021 (HCAL 1989/2020), whereupon on 20 February 2021 he was repatriated to India.

Request To Make Subsequent Claim

10.Almost 4 years later on 1 January 2025 the Applicant sneaked back into Hong Kong and surrendered to the Immigration Department on 2 January 2025 when he requested to make a subsequent claim on the basis that he fears of being harmed or ill-treated or killed by the India government and authorities if refouled to India for having participated in the 2021 Indian farmers’ protests against certain legislations enacted by the government in 2020 but which were opposed by many farmers in the country.     

11.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.”

12.Accordingly, 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”) with the following information (see [10] of the Director’s decision):

(a)  That while in Hong Kong pursuing his previous claim that he was informed by his parents in February 2021 that they had resolved his problem with SAD that he therefore withdrew his application for judicial review and returned to India;

(b)  That in around January 2022 he together with 8 friends planned to participate in a demonstration organized by farmers in India known as Kisan Yugt Morcha (“KYM”) in Lal Qilla, New Delhi in support of farmers’ rights;

(c)  That in New Delhi he and his friends met up with Deep Sidhu who was a movie actor and the founder of Waris Dunjab De, a political organization established in around February 2021, and then they participated in the demonstration during which the Indian government sent in the police to suppress the demonstration by firing bullets at the demonstrators and killing 2 of his friends Harjit Singh and Surjit Singh, while the Applicant was also beaten by police with their batons that resulted in bruises on the left side of his head with a visible scar, but he managed to escape from the scene and made his way back to his home in Sarhali Kalan to collect his personal belongings before planning to go into hiding;

(d)  That while he was in Sarhali Kalan, the police came to his home looking for him that he went hiding upstairs, and when his parents told the police that he was not in the house and that they did not know anything about any demonstration, but  a member of the Legislative Assembly (“MLA”) of the Aam Admi Party (“AAP”) as well as a co-ordinator between Bharatiya Janata Party (“BJP”) and AAP by the name of Laljit Bhullar (“Laljit”) who came with the police told his parents that they were going to arrest the Applicant and his friends for participating in the demonstration, and threatened that he himself would shoot the Applicant when the police found him;

(e)  That after the police had left that the Applicant fled to Mohali, Punjab to meet up with his friends and Deep Sidhu’s brother Gurmit Singh who then recruited them all to be members of Waris Punjab De;

(f)  That on 15 February 2022 Deep Sidhu died in a car accident, and while the Applicant and his friends subsequently were on their way to Ludhiana to attend the funeral, they were intercepted by some Indian government intelligent agents, but when they refused to answer any questions, they were subsequent allowed to go;

(g)  That in March or April 2022 Amrit Pal Singh, the vice president of Waris Punjab De, became the president of the organization;

(h)  That sometime in March 2023 the Indian police arrested 25 of the Waris Punjab De members including the Applicant and detained them in Ajnala Prison and the police station, during which the Applicant was threatened that he would be killed if he refused to admit what he had done, and was denied any food or water until he was subsequently bailed out by his organization, and that it was subsequently from the news that he learnt that the arrest warrant issued against all 25 of him and his fellow members were for the violation of the national security act, whereupon he fled to Jalandhar before moving on to Mumbai and New Delhi;

(i)  That whilst in New Delhi one day he was confronted by 4 unknown men who accused him of being an enemy to the country, and proceeded to attack him with wooden sticks but he managed to escape from the scene without harm;

(j)  That eventually on 18 December 2024 he departed India for China, and from there he later sneaked into Hong Kong and raised his request to make a subsequently claim.  

13.By a Notice of Decision dated 9 September 2025 the Director refused to allow the Applicant to make a subsequent claim upon finding 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, that those changes as alleged by the Applicant were not accepted as true or credible and therefore do not constitute as significant change of circumstances which would give his intended subsequent claim any realistic prospect of success, and as found in his previous claim that state protection and internal relocation alternatives would similarly be available to him upon his return to India to lower or negate his perceived fears from his intended subsequent claim.

14.On 29 September 2025 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Director reached the wrong decision in assessing his intended subsequent claim;

(2)  That the Director refused his request and rejected his intended subsequent claim without any proper inquiry or careful understanding his situation;

(3)  That the immigration officer failed to tour his home country and to ask those familiar with his case what real danger that he would face if returned to India.        

15.These are however bare and vague assertions of the Applicant without the necessary details or particulars or elaboration as to how they actually apply to his case, or in what way did the Director or the immigration officer exactly err in the decision or that it was unfair or unreasonable, nor was the Applicant able to do so at the hearing of his application.

16.Nevertheless, and while accepting that the Director and his immigration officers are as of necessity entitled to strictly apply Section 37ZO of the Ordinance as a stringent filtering process in dealing with requests to make a subsequent claim so as to eliminate unmeritorious claims by claimants after their previous claims have already been properly and finally determined and disposed of to prevent abuses by them to seeking to avoid or delay their removal by the Immigration Department, but in the present case and on the basis of the detailed information submitted by the Applicant as noted above, it is quite clear that the factual basis of his intended subsequent claim is different from his previous claim, and that the asserted risk to him is now said to be from the Indian government and authorities which has hitherto never been screened as to its merit or substance under the USM, henceforth high standards of fairness would require the Court to scrutinize the Director’s reasons for any error of law or procedural unfairness in refusing the Applicant’s request to make his such subsequent claim.

17.The Director’s reasons for the refusal can be found in the following paragraphs of his decision:

“12. In your Statement, you now asserted that you along with 8 other friends and the founder of Waris Punjab De protested together in a demonstration called KYM in January 2022. Eventually, the Indian government sent many police officers to suppress the demonstration. You claimed that a police beat you up with a police baton during the demonstration resulting bruises on you head. You then escaped from the scene and travelled back to your home in Sarhali Kalan to pick up your belongings to go to Mohali, Punjab. You asserted that the police came to your home while you were in Sahali Kalan hiding upstairs in your home. Your parents told you that Laljit Bhullar (“Laljit”), a MLA of AAP and also a co-ordinator between BJP and AAP with other police officers were at the door and Laljit said to your parents that he would shoot you down as soon as he found you. Even if it is taken to be true that you had participated in the said demonstration, it is considered that the Indian police were solely carrying out their duties by using the necessary force to suppress the wrongdoers breaching the peace and order at that juncture and there was no information and evidence adduced by you to indicate that the Indian police was targeting you in particular. With regard to Laljit’s death threat posed against you when he came to your home with the police officer, you were only given to know about this through your parents which was hearsay. Besides, no evidence was adduced to indicate Laljit had previously hold any grudges against you that he would pose such death threat against you for your participation in the KYM protest in New Delhi. Under such circumstances, it is not accepted that there has been a significant change of circumstances since your previous claims were finally determined.

13. You also asserted that you then travelled to Mohali, Punjab to meet up with your friends and Deep Sihdu’s brother, Gurmit Singh after the police left your home. Gurmit Singh recruited you all to be members of Waris Punjab De and you became an ordinary member of Waris Punjab De and received training about Waris Punjab De. In March 2023, you claimed that the Indian police arrested 25 of you without a recent development, and detained all of you in Ajnala Prison and Police Station. The police detained you for 4 to 5 hours and they did not physically mistreat you but verbally threatened to kill you if you do not admit what you have done. You claimed that it was a fabricated case. Amrit Pal Singh sent Gurmukh Singh to bail out all of you. In April 2023, you claimed that you read the news that the authorities issued a warrant for all 25 of you and accused all of you for violating the national security act as stated in the warrant. To avoid the police arrest, you relocated to Jalandar for 7 days and then moved to Mumbai for 6 months and nothing eventual happened. You subsequently relocated to New Delhi and lived there from November 2023 to November 2024. One morning, a group of 4 unknown men followed you and intercepted you. They attempted to beat you with wooden sticks and one of them said that you are an enemy of the country. You suspected they were sent by the Indian government. You successfully escaped and journeyed to Mohali on foot. After all, it is merely your speculation without adducing any concrete evidence to support your bare assertion that you were wanted by the Indian government for participating a demonstration in the past. Though you became an ordinary member of Waris Punjab De after taking part in the demonstration, you adduced no evidence to indicate that becoming an ordinary member of Waris Punjab De had caused you any problems from anyone apart from your bare assertion that you encountered 4 unknown men one day while you were in New Delhi when you suspected them to be sent by the Indian government. Despite you claimed that a warrant of arrest was issued against you, you could relocate to different places within India over the past years without being chased down or arrested by the Indian police and eventually could depart India for Hong Kong without being intercepted is considered to be incredible and far from convincing especially you were wanted for violating the national security act as claimed. In the absence of evidence to indicate you are under a warrant of arrest by the Indian authorities, your claimed imminent threats from the Indian Government as mentioned in the Statement is not accepted to be true and therefore does not constitute a significant change of circumstances which would give the intended subsequent claim a realistic prospect of success.

14. For the sake of completeness, it was duly considered in your previous claim that state protection would be available to you if you resort to and internal relocation would also be an option to you to lower or negate your perceived fears. After all, you adduced no substantial evidence regarding the current situation in India and the Indian government policy is not good for its citizens which amount to any risk of harm to you personally upon your return to India. There is also insufficient evidence that suggests a significant change in the condition of your home country that would refrain you from getting state protection and internal relocation.”         

18.It appears from the above that the Director refused the Applicant’s request to make a subsequent claim essentially for the following reasons:

(a)  That what he had been told by his parents of the threats made by Laljit Bhullar, the MLA of AAP and co-ordinator of BJP who came with the police looking for him were just hearsays and without any evidence to indicate that Laljit had held any previous grudges that he would pose such threats against the Applicant;

(b)  That in any event the police were just carrying out their duties to suppress the demonstration and to arrest those who were involved as wrongdoers for breaching the peace;

(c)   That it is not credible that with a warrant of arrest against him that the Applicant managed to move around the country for years without problem and could still depart India for Hong Kong;

(d)  That state protection and internal relocation would be available to the Applicant upon his return to India without any risk of harm from the Indian authorities.     

19.I shall deal with the last point first, given the Applicant’s asserted risk of persecution is from the Indian state and/or state-agents from ruling political parties who are presumed to act throughout the country, if indeed they are the feared persecutors, it is clear that state protection would not be applicable, and that there is also a presumption in principle that an internal flight or relocation alternative is not available either: See Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at para 21; TK v Jenkins & Anor [2013] 1 HKC 526 at 539 – 540.  

20.It then follows that whether there are substantial grounds for believing that the Applicant would be at risk of being subjected to ill-treatment or persecution by the Indian state and/or state agents from the ruling or leading political parties is a question of primary facts to be made by the Director, with the burden of course laid with the Applicant to convince the Director and the immigration officer of what he said were true, of which the standard of proof is of civil standard on the balance of probabilities: Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589.

21.The Applicant was as noted above found by the Board in his previous claim to be a credible witness with active involvement in the politics of SAD(A), and that in his request to make a subsequent claim he had also provided details of information as to how he upon returning to India again became politically active and participated in the demonstration for farmers rights in 2022 as well as his subsequent arrest by the police and authorities, and while it was necessary for the Director and his immigration officer to subject such request to stringent compliances of the requisitions stipulated under Section 37ZO of the Ordinance, high standards of fairness would still require the Director to make clear findings of the primary facts, and that if it was not possible to do so just based on the materials submitted by the Applicant, in my view the immigration officer should consider whether it would be necessary to conduct an interview of the Applicant or in the presence of his lawyer from DLS for further enquiries and to give him the opportunity to clarify any inconsistencies that the immigration officer might wish to raise, and to point out to him of any intention to impeach the credibility of his evidence or at least to draw his attention to any such problems with his claim so that he may respond or explain or otherwise deal with such aspect of his evidence, rather than just appearing to simply brush aside his claimed threats from Laljit as mere hearsays, or to find his assertion that a warrant of arrest had been issued against him as not credible simply because he was able to move around and subsequently left the country without any difficulty: See Re Masud MD [2021] HKCA 1449 at paras 32 - 36.             

22.Furthermore, in assessing the credibility of the Applicant’s intended subsequent claim, it did not appear that the Director or the immigration officer had referred to any relevant COI at all as regard the conditions then in India in particularly as to the alleged demonstrations in support of farmers rights in 2021 - 2022 and the subsequent actions, if any, by the police and/or the Indian government against those who had participated in such demonstrations or activities before rejecting the Applicant’s claim as not credible: See Secretary for Security v Sakthevel Prabakar (2007) 7 HKCFAR 187 at paras 52 - 55.

23.In the premises, and for these reasons I am of the view that the Applicant’s intended application for judicial review of the Director’s decision in refusing his request to make a subsequent claim is reasonably arguable on the grounds that the Director (1) failed to properly or adequately consider the Applicant’s request and/or (2) failed to refer to any or relevant COI in assessing the credibility of the Applicant’s intended subsequent claim and/or (3) erred in law in the assessment of the availability of state protection and internal relocation to the Applicant upon his return to India, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

24.Accordingly I grant leave to the Applicant to apply for judicial review on the grounds stated above, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Director as respondent. 

Dated the 16^th day of December 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