Muthukrishnan Selvarajan v. Director of Immigration
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HCAL 770/2022 [2026] HKCFI 5762 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 770 of 2022 BETWEEN
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 To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 16 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 July 2022 (the “2022 Notice”) refusing his request to make a subsequent claim (the “Request”). 2.The Applicant had requested an oral hearing. A hearing on 16 September 2026 was scheduled and notice of hearing were sent to him by post on 14 August 2026 to his address as stated in his Form 86 and to his last known address discovered from the Immigration Department on 16 March 2026. Neither of the notices has been returned in the course of mail. The Applicant had never informed the court of any change of address since filing his Form 86. There is nothing to suggest that he had not received either of the notice of hearing. Attempts were made on the afternoon of 15 September 2026 and on the morning of the date of hearing to contact him by telephone on the telephone number provided by him and confirmed by the Immigration Department to remind him of the hearing, but the calls were not answered. The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice. He did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing. Background 3.The Applicant is an Indian national, now aged 48. He last arrived in Hong Kong on 24 September 2005 and overstayed since 9 October 2005. He was arrested by the police for overstaying and taking up unapproved employment. On 25 and 27 June 2006, he lodged a claim for protection under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”). His Torture Claim was rejected by the Director on 10 August 2012. He absconded since 8 October 2012. 4.On 9 February 2013, he was arrested by the police and referred to the Immigration Department. On 14 and 15 February 2013 he lodged a non-refoulement claim. His claim was assessed on all applicable grounds under the Unified Screening Mechanism (“USM”) other than Torture Risk ground, ie BOR 2 Risk, BOR 3 Risk[1] and Persecution Risk[2] grounds (the “previous claim”). His previous claim was rejected by the Director’s Notice of Decision dated 24 January 2017 (the “2017 Notice”). His appeal against the 2017 Notice was dismissed by the Board’s Decision dated 22 January 2018 (the “2018 Decision”). He applied for judicial review against the 2017 Notice and 2018 Decision. His application was dismissed by the Court of First Instance on 15 September 2020. His appeal against the decision of the Court of First Instance was dismissed by the Court of Appeal which also refused him leave to appeal to the Court of Final Appeal. His application for leave to appeal to the Court of Final Appeal was also refused by the Court of Final Appeal on 18 March 2022. Hence, his previous claim has been finally determined. 5.Two and half months later, he made the Request to the Director by letter dated 2 June 2022 for making a subsequent claim. His Request was rejected by the Director’s 2022 Notice. He now seeks leave to apply for judicial review of that 2022 Notice. The law and procedural history 6.Under the USM, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance. The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success. In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant. 7.By a letter dated 28 June 2022, an immigration officer informed the Applicant of the requirements for making a subsequent claim. On his request, the immigration officer referred his Request to the Duty Lawyer Service (“DLS”) which agreed to represent him. On 21 July 2022, DLS provided additional information with the Applicant’s statement titled “Why I fled from India” (the “Statement”) and some supporting documents which are essentially articles about the political situation in India in the last hundred years. The previous claim 8.In his previous claim, the Applicant claimed that if returned to India he will be harmed or even killed by a group of unknown people whom he believed to be members of the People Awareness Movement (the “PAM”) because he refused to plant a bomb in a mosque for them. The immigration officer who assessed his previous claim (the “case officer”) rejected his evidence as incredible. He found there was no evidence of any official involvement by the PAM in threatening him and that his claimed fear was not credible. He did not accept severe pain or suffering had been inflicted on him or that he would be subjected to any real risk of torture, if returned to India. Given the low intensity and frequency of ill-treatment, he found there was no reasonable likelihood that the PAM would have continuous interest in the Applicant. He found there was no substantial grounds for believing that the Applicant’s perceived fear would be real and foreseeable upon his return to India. He also found the Applicant could avoid the risk of harm by seeking state protection and internal relocation. 9.The Board found the injuries suffered by the Applicant did not attain the minimum level of severity. As the Applicant was able to keep himself out of reach by the PAM even shortly after his escape from their detention in August 2005, the Board found the PAM was not very influential in India. He had never been subjected to any form of ill-treatment since his escape. The Board found there was no reasonable likelihood that the PAM would spare manpower and resources to locate him for the purpose of harming or killing him. It was not convinced that after the long lapse of time the PAM would still be eager to look for him. It considered his fear was not well-founded. It also found adequate state protection would be available in India and rejected the Applicant’s belief that the police would not help him as unfounded. The intended subsequent claim and the immigration officer’s decision in the 2022 Notice 10.In his Request, the Applicant repeated his fear of continuous and imminent threats from members of the PAM. He asserted that he learned from his friend in India that the PAM members were still verbally threatening to kill him and searching for him. He had no confidence that he could seek assistance from the Indian authority since the Bharatiya Janata Party (the “BJP”), to which the PAM is affiliated, is the ruling party in India. He believes the PAM and BJP could easily locate him through their powerful and resourceful network in politics. 11.In his statement, the Applicant asserted that because of his refusal to plant a bomb in a mosque, he was treated as a traitor of the PAM and faced continuous and imminent threats from the PAM members. He said because of their relationship with BJP and Rashtriya Swayamsevak Sangh (the “RSS”), the PAM have become powerful and has widespread influence on politics, the judiciary and the media in India. They have become more prominent even in his hometown and are looking for him. Hence, he believes the PAM members could locate him anywhere in India and kill him. 12.In his statement, he discussed about political changes in India during the past 100 years, including majoritarianism and caste system, the founding of the RSS, infiltration of the government by clandestine elements of the RSS, compromising of the judiciary, media infiltration, violence against Muslims in the past 20 odd years and genocide warning by Genocide Watch. The discussion demonstrates the discrimination against Muslims and the atmosphere of violence under which the Applicant refused to participate in the PAM’s plot and fled from India. All these have little if not nothing to do with his own personal experience from the PAM or RSS. 13.The immigration officer considered the Applicant’s fear of being harmed or killed by the PAM members was based on verbal threats and not supported by any credible evidence. The threats originated from an incident which happened in 2005 about 17 years prior to the hearing before the Board. He considered there was no reasonable likelihood that the PAM members would still have a continuing interest in looking for him after such a long lapse of time and would mobilise its resources to search for him throughout India. The threat and the incident from which his fear originated had been considered in the previous claim. 14.There was no evidence whether in the previous claim or in the Request or the Statement that BJP members had ever harmed the Applicant. The immigration officer therefore rejected the Applicant’s fear of being harmed or killed by the BJP members because of PAM’s affiliation with the BJP as his mere speculation without any evidential basis. 15.As for the Applicant’s claim that he had no confidence in the protection from the Indian authority, the issue had been determined in the previous claim. The Board found based on a wealth of credible and authoritative COI from 2012 to 2016 that the Indian police is committed to protect the community in India. It found adequate state protection is available in India and that it was the Applicant’s conscious choice not to seek help from any authority and not that he had experienced any nonfeasance or malfeasance on the part of the police. The Board noted the Applicant’s claim that PAM members had been asking for his whereabouts in his locality by showing his photographs. Obviously, that evidence was not sufficient to change the Board’s finding of fact that adequate state protection is or would be available to the Applicant on his return to India. 16.The Applicant claims that his enemies could with their powerful and resourceful network locate him all over the country and harm or kill him. While part of his statement and some of the articles he submitted supports his assertion of unsatisfactory human rights situation in India, the immigration officer considered they do not contain information material to the Applicant’s specific case showing that he will be personally at risk. He considered the existence of human rights abuses does not in itself constitute a sufficient ground for finding that a particular person will be in danger of being subjected to harm or ill-treatment on his return to that country, not to mention that state protection is available. 17.In view of the above, the immigration officer did not accept there had been a significant change of circumstances since the Applicant’s previous claim was finally determined and that 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. Hence, he refused the Request. The legal principles applicable to judicial review 18.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[3]. Grounds for judicial review 19.The Applicant had not advanced any grounds of application in his Form 86 or supporting affirmation. He did not attend the hearing and forwent his opportunity to have the Court to explore the grounds of application with him. In the absence of particularised grounds of application, the Court in an application for judicial review could only focus on errors of law, procedural unfairness and irrationality in the Decision. Overall scrutiny 20.Having considered the Request, the Director’s 2017 Notice, the Board’s 2018 Decision and having also rigorously examined the Director’s 2022 Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles applicable to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence. The immigration officer observed a very high standard of fairness. He properly advised the Applicant of the requirements in making a subsequent claim and assisted him to obtain publicly funded legal assistance. The Applicant could have no valid complaint about procedural unfairness in the immigration officer’s processing of his Request. 21.In essence, the immigration officer found there was no significant change in circumstances since the previous claim was finally determined. The Applicant’s intended subsequent claim is a re-litigation of his previous claim. He relied on the same fear which arose from an incident in 2005 when he refused to plant a bomb in a mosque for the PAM. He added some new elements. He introduced a new enemy, the BJP, to which the PAM was affiliated; and some new information about the political changes in India in the past 100 years to set the scene in which his fear arose. He repeated his belief that the authority will not protect him. His intended subsequent claim is essentially built on his own personal belief and hearsay from what his friend in India told him. For reasons as stated in paragraphs 10 to 17, the immigration officer was not satisfied that there has been any significant change of circumstances since the Applicant’s previous claim was finally determined which when taken together with the materials previously submitted in support of his previous claim would give the subsequent claim a realistic prospect of success. The immigration officer’s finding is essentially a mixed finding of law and of fact. On the evidence, it is open to the immigration officer to make the finding as he did. Insofar as it is finding of law, this Court could detect no error of law in the 2022 Notice. Insofar as it is a finding of fact, on the evidence it was open to the immigration officer to make the finding as he did. His finding of fact is solely within the realm of the decision maker, which the Court in an application for judicial review may not interfere, save for errors of law, procedural unfairness and irrationality in the decision or procedural unfairness in the 2022 Notice. This Court could find no errors of law or procedural unfairness in the 2022 Notice. The decision in the 2022 Notice does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospect of success. Conclusion 22.For the above reasons, the Applicant’s leave application is refused. Dated the 20th day of October 2026
Form CALL-1 [1] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [2] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [3] [2018] HKCA 524 at [14(1)] |
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