HCAL 1035/2024

[2024] HKCFI 2110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1035 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 / the Applicant being absent in open court;

1. The application for leave to apply for Judicial Review be dismissed; 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 24 May 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her 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 47-year-old national of the Philippines who last arrived in Hong Kong on 24 December 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 20 November 2019 or within 14 days of its early termination, but was arrested by police on 28 December 2018 for making a false representation to an immigration officer, and for which she was subsequently convicted and sentenced to prison for 4 months. After her discharge from prison on 3 April 2019 and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by her step-father for disclosing his extra-marital affair with another woman to her mother.

Previous Non-Refoulement Claim

3. By a Notice of Decision dated 20 June 2019 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 her 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 her step-father upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her step-father to seriously harm or kill her other than some angry words uttered by him to her mother during their quarrels and were repeated to her by her mother on the phone while