HCAL 1225/2024
[2024] HKCFI 2424
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1225 OF 2024
BETWEEN |
| | Navarro Ma Trisha Rodriguez | Applicant |
| | and | |
| | Director of Immigration | Putative Respondent |
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 Bruno Chan:
Leave to apply for judicial review be refused.
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 16 July 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 22-year-old national of the Philippines who together with her 2 younger siblings arrived in Hong Kong on 17 April 2015 when they were still minors to join their mother who had previously worked in Hong Kong as a foreign domestic helper but was then in the process of her non-refoulement claim for protection to the Director, and after the Applicant and her siblings had overstayed their visitor visas, their mother also raised a non-refoulement claim for the 3 of them on the basis that if they returned to the Philippines they would be harmed or killed by their father over their parents’ domestic disputes and/or by their mother’s creditor over her outstanding debts.
Previous Non-Refoulement Claim
3. Having earlier rejected their mother’s non-refoulement claim, the Director by a Notice of Decision dated 25 February 2016 and a Notice of Further Decision dated 30 June 2017 also rejected the claims of the Applicant and her siblings on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of their 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 decisions the Director took into account of all the relevant circumstances of the claims of the Applicant and her siblings and assessed the level of risk of harm from their father or their mother’s creditor upon their return to the Philippines as low due to the absence of any past ill-treatment from either of them or any reliable evidence of any intention or reason of either of them to harm or kill the Applicant or her siblings, that in any event these were private domestic or monetary disputes between their parents or their mother with her creditor only without any official involvement that state or police protection would be available to the Applicant and her siblings 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 101 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant and her siblings together with their mother as an able-bodied adult with working experience to move to other part of the country away from their home district in large cities such as Manila where it would be difficult if not impossible for anyone to locate them.
5. The appeals of their mother as well as of the Applicant and her siblings against the Director’s decisions were then dismissed by the Board respectively on 15 June 2017 and 2 November 2018 upon finding no merits in their claims or appeals, and that it also confirmed the Director’s decisions.
6. Their applications for leave to apply for judicial review of the respective decisions of the Board were also refused by this Court on 12 March 2024 upon finding none of the proposed grounds for their intended challenge reasonably arguable, that there was no error of law or procedural unfairness in their processes before the Board or in its decisions, and that there was no prospect of success in their intended applications (HCAL 2583/2018 & HCAL 393/2022 (consolidated) [2024] HKCFI 740).
Request To Make Subsequent Claim
7. The Applicant or her mother or siblings never brought any appeal against the Court’s decision, but less than 2 weeks later on 25 March 2024 the Applicant wrote to the Immigration Department requesting to make a subsequent claim as follows:
“I came to Hong Kong on 16 April 2015 from the Philippines to join my mother Navarro Mylene Rodriguez in Hong Kong. I joined my mother in Hong Kong because no one could take care of us and my mother could not return in the Philippines. I came to Hong Kong with my two siblings Navarro Michael Adrian and Navarro Ma Jisella. After few years, my mother got married to a British man and her status changed from refugee to dependent visa along with my brother and sister. Because of my age at the time, the Immigration denied my application. That being said, I could not go back Philippines alone because my family is here. I have no one in the Philippines. Please consider my application.”
8. 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.”
9. Accordingly, on 12 April 2024 the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did with a similar statement as above after the Duty Lawyer Service (“DLS”) declined to represent her in her application.
10. By a Notice of Decision dated 16 July 2024 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of her previous claim, and that she failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success.
11. On 29 July 2024 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation filed on the same day to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application other than just repeating her statement as noted above.
12. In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim, and much as I am sympathetic to her plight, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse her leave application.
Dated the 12th day of September 2024
| | (Chung Lai Fan, Christine)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
| | | | |
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
| | Sent to the Applicant on 12 September 2024
Navarro Ma Trisha Rodriguez
Applicant’s ref. no.:
Nil. | | Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 September 2024
Director of Immigration
Putative Respondent’s ref. no.:
L/M (30574) in ImmD RA 7/37/C (Formerly RBCZ/9002188/17 and RBCZ/12432/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1