Esmiralde Naguimbing Ruz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1103/2024

[2024] HKCFI 2766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1103 of 2024

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 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 11 July 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 25 April 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 1 February 2024, refusing his application for non-refoulement protection.

2.The Applicant is a national of the Republic of the Philippines, now aged 47.  He was married in 1999 and has a son, but his wife and son left him in 2000.  In 2003, he cohabited with another woman and has two children born out of that cohabitation.  His cohabitee and children also left him in 2009 or 2010.  Then he came to Hong Kong to work as a foreign domestic helper in May 2012.  He last entered Hong Kong as a visitor on 2 November 2013 and overstayed since 17 November 2013.  While in Hong Kong, he started another relationship with a woman (“JC”), presumably also a Philippine national, and has five children born between 2014 and 2022 out of that relationship.

3.On 15 April 2015, the Applicant was arrested by the police for overstaying and referred to the Immigration Department.  His claim was deemed withdrawn because of his failure to return the completed non-refoulement claim form within the time limit.  Then he raised a subsequent claim by way of written representations on 5 October 2023 and 17 November 2023.  In gist, he claims if returned to the Philippines he will be harmed or killed (1) by the New People’s Army (“NPA”) which mistakenly believed he had accused the NPA as the mastermind of a bombing incident in 2009; (2) by the police because of the anti-drugs campaign and his drug addiction; and (3) by JC’s husband because of his extra-marital relationship with JC.

4.His claim was rejected by the Director’s Notice.  His appeal against that Notice was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of that Decision.  However, by a letter dated 19 August 2024, he wrote to the Court seeking to withdraw his leave application as he wanted to go back to his home country as soon as possible (the “withdrawal application”).  He asserted that the problem in his home country had been solved and it is safe for him to return. 

5.To ensure that his application to withdraw the leave application was made voluntarily and that he understood the consequence if his leave application is withdrawn, this Court gave him directions by letter to file a statement or affirmation to acknowledge these matters.  The direction letter was sent to the Castle Peak Bay Immigration Centre where he was then detained. It was returned on 16 September 2024 with an indication that he had left the Centre.  Enquiries with the Immigration Department revealed that he had been removed on 19 August 2024, ie the date of his withdrawal application. 

6.Though the direction letter never reached the Applicant, having regard to his unequivocal intention to withdraw his leave application and to return to his home country, his assertion that his problem in his home country had been solved and it is safe for him to return as stated in his letter dated 19 August 2024 and the fact of his departure from Hong Kong on the very date of that letter, the Court is satisfied that his application to withdraw was made voluntarily. 

7.The Applicant had been in Hong Kong pursuing his non-refoulement claim for ten years.  He exhausted all avenues of claim and appeals, including making of a subsequent claim.  He was seeking a judicial review of the Decision which he must have known was the last avenue open to him in his pursue for non-refoulement protection.  He must have known that if unsuccessful, the Decision will remain in force and he will be refouled.  Likewise, he must have known that withdrawing the leave application will have the same effect.  It was with all these in mind that he lodged the withdrawal application and started his refoulement journey. 

8.In the circumstances, the Court is satisfied that it is now safe for the Applicant to return to his home country; that his application to withdraw the leave application was made out of his own free will and that he understood that if his withdrawal application is approved, the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dismissing his appeal against the decision of the Director of Immigration in the Notice of Decision remains in force; and he may not make further application for leave to apply for judicial review of the Board’s Decision.  Hence, the Court allowed his application to withdraw and his leave application is withdrawn with immediate effect.

Dated the 18^th day of October 2024

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