HCAL 1259/2024

[2024] HKCFI 2425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1259 OF 2024

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;

1. Leave to apply for Judicial Review be refused; and

2. A Restricted Proceedings Order (RPO) be made against the Applicant.

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 8 July 2024 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 applicable grounds.

2. The Applicant is a 44-year-old national of the Philippines who last visited Hong Kong on 28 July 2006 as a visitor with permission to remain as such up to 2 August 2006 when he did not depart and instead overstayed, and was arrested by police on 18 March 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to the Philippines he would be harmed or killed by his creditor over his outstanding debts, and after it was rejected, he then sought non-refoulement protection on the same basis.

Previous Non-Refoulement Claim

3. By a Notice of Decision dated 9 February 2018 the Director rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

4. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that that there is no evidence of any real intention of them to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only without 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 the Philippines with a large population of 104 million people spread across a vast territory of more than 300,000 square kilometers that