Penol Agustino Pasamanero v. Director of Immigration

HCAL 934/2021

[2021] HKCFI 2280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 934 of 2021

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to file the application for judicial review of the decision of the Director of Immigration dated 22 June 2021 (the “Director’s Decision”) refusing his application for a subsequent claim of HCAL 500 of 2018 (the “original claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

2.In his affidavit in support of his application, the applicant asked for an oral hearing if leave is not granted on the papers.  Hence, he was called upon to attend the hearing.

The procedural history

3.The applicant is an illegal immigrant from the Philippines.  He raised non-refoulement claim with the Immigration Department on 7 February 2012 on the grounds of Torture claim, which is covered by torture claim under section 37U (1) of the Ordinance.  The Director refused his application on 12 July 2012.  He did not appeal against this decision to the Torture Claims Appeal Board (the “Board”)

4.He lodged non-refoulement claim on BOR 2 risk, Right of Life risk under Article 2 of the Bills of Right Ordinance; the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention.  By Decision dated 6 July 2017, the Director refused his claim and he appealed to the Board.  By Decision dated 9 March 2018 (the “Board’s Decision”), the Board dismissed his appeal.

5.He applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 11 December 2018 (the “Court’s Order”).

6.He appealed against the Court’s Order to the Court of Appeal and his application was refused on 2 April 2019.

7.His application for leave to appeal to the Court of Final Appeal was refused by the Court of Appeal on 4 June 2019.

8.His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 4 May 2020.

9.He applied to the Director for making a subsequent claim for non-refoulement protection under the unified screening mechanism by letter dated 15 June 2020.

10.By the Director’s Decision, the Director refused his application.

The subsequent claim application

11.The factual basis of his claim is that if he is refouled to the Philippines, he will be harmed or killed by his ex-business partner, Mr. Angelo as he had business disputes with him.

12.The Director found that there were no substantial grounds for believing that he would be harmed or killed by Mr. Angelo if he returned to the Philippines; that state protection would be available to him and internal relocation was an option open to him.  He appealed against this Decision to the Board.

13.The Board accepted that he faced a real risk of harm from Mr. Angelo if he returned to the Philippines, his home town.  However, the Board considered that it was reasonable for him to consider internal relocation to places like Manila.  On this basis, the Board dismissed his appeal.

14.Under section 37ZO of the Ordinance, he has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realist prospect of success.

15.The applicant relies upon the following new circumstances in support of his subsequent claim:

a.  his brother had gone to demand money from Mr. Angelo, who got angry and made report to police against him; and

b.  he got married in Hong Kong after his original claim had been determined and is now living with his wife, his step-daughter and his mother-in-law and therefore he considers that he cannot separate from his family here.

16.The Director considered his reasons and found that the first issue was a continuation of his original claim, which had been dealt with in the previous proceedings and was therefore not a change of circumstances.  As to the second issue, his recent establishment of a family in Hong Kong did not indicate any risk of harm or to his family if he returned to his home country.  The Director did not accept that his family in Hong Kong would give his intended subsequent claim a realistic prospect of success.

The application for leave to file judicial review application

17.The applicant has filed an affidavit in which he set out the grounds in support of his application below.

a.  Procedural impropriety: Director having failed to have sufficient diligence in considering his application, to make sufficient inquiry into the relevant country of origin conditions, to consider that his enemies would harm him for political reasons, to give reasons to assess his BOR 2 risk and BOR 3 risk and the reasons for this subsequent claim and he failed to consider his fear and that he is unable to relocate to other places because they can easily trace him wherever he hides in his country.

b.  Error/misdirection in law: Director having failed to take into account the considerations of psychological strain and threats to him personally.

The application for withdrawal

18.A hearing has been fixed for the applicant to appear before the Court for his application.

19.The Director is plainly right to say that his family in Hong Kong after the determination of his original claim is not a valid ground for his subsequent claim as the Court of Final Appeal in Comilang, Milagros Tecson & others v Director of Immigration [2019] HKCFA 10 held:

“The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11.,,,” [90]

20.By letter dated 20 July 2021, the applicant applied to withdraw his new application for leave for judicial review of the Director’s Decision.

21.It is clear that the applicant has no intention of proceeding with his application.  The Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 said:

“67. It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5th ed) at §18.18.1)….”

DISPOSITION

22.The applicant’s application is dismissed.

23.The purpose of setting out the procedural history here is to remind the applicant that if he applies to revive his claim on the same facts in the near future, the Court will consider making a restrictive proceeding order against him to prevent abuse of its process.

Dated the 12^th day of August 2021

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