QUIATCHON JEFREY MEDIAVILLA v. DIRECTOR OF IMMIGRATION

HCAL 2513/2024

[2025] HKCFI 806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2513 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;

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 12 November 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claims 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 38-year-old national of the Philippines who arrived in Hong Kong on 11 June 2018 as a visitor with permission to remain as such up to 23 June 2018 when he did not depart and instead overstayed, and on 3 July 2018 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by some local criminals for having witnessed a murder committed by them and for assisting the police in their investigation and arrest of those criminals.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 14 March 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 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 found no substantial grounds for believing that he would be in danger of being harmed or killed by those local criminals or murderers upon his return to the Philippines due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Manila where it would be difficult if not impossible for anyone to locate him.

5.  The Applicant’s appeal against the Director’s decision was dismissed by the Board on 8 January 2020 after hearing him in evidence and submissions and upon finding no merits in his claim or appeal, and that it also confirmed the Director’s decision.

6.  The Applicant’s late application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 27 August 2024 upon finding no good reason for his significant delay with his application, that none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 867/2020 [2024] HKCFI 2186).

Request To Make Subsequent Claim

7.  The Applicant did not bring any appeal against the Court’s decision, but some 2 weeks later on 11 September 2024 he in writing to the Immigration Department requested to make a subsequent claim on the basis that in addition to the risk of being harmed or killed by those criminals or murderers from his previous claim who according to his family in the Philippines are still looking for him everywhere, that back in 2022 he was arrested by police for theft and for which he was convicted and imprisoned at Stanley Prison, during which he was exposed to the religion of Islam that he subsequently converted his religion from Christianity to Islam by undergoing a ceremony conducted by an Imam inside the prison on 26 November 2022, but when he later informed his Christian family in the Philippines of the same, they were furious and threatened to kill him upon his return, and hence he also fears of being harmed or killed by his family if refouled to the Philippines.

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, the Director on 24 September 2024 in writing required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”) including a certificate of his claimed conversion into Islam allegedly issued by the Kowloon Mosque & Islam Centre as proof of his conversion.

10.  By a Notice of Decision dated 12 November 2024 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis of his alleged risk of harm from those criminals or murderers as before is the same as that of his previous claim which had already been finally determined, that he failed to provide sufficient evidence in writing to satisfy an immigration officer that his claim of risk of harm from his family over his alleged religious conversion to Islam was reliable or credible upon finding doubts over the authenticity of the produced certificate of his alleged conversion into Islam due to discrepancies and inconsistencies over the date or time frame between his alleged conversion, the date of the issue of the certificate, and his claimed threats from his family over the conversion, and that in any event even if such risk were real that it arose from some private personal dispute between him and his family only that would not amount to a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given the unchallenged findings by both the Director and the Board in his previous claim of the availability of state protection and reasonable internal relocation to him upon his return to the Philippines to similarly negate any risk that may arise from his intended subsequent claim.

11.  On 17 December 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 relief was given in his Form, and in his supporting affirmation of the same date he just repeated his intended subsequent claim as before and just cited various legal principles applicable to the determination of non-refoulement claims, that he has since formed a family with a local Hong Kong resident and has a son that he wants to raise in Hong Kong, and that he is not satisfied with the Director’s decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

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 to make a subsequent claim, and given the correct findings by the Director that on the basis of even his own case that his intended subsequent claim if true is a private dispute between the Applicant and his family only without any official involvement that any risk arising therefrom would similarly be negated by state protection and reasonable internal relocation available to him upon his return to the Philippines, as similarly assessed by both the Director and the Board in his previous claim and as noted above also found to be correct by the Court in the previous proceedings that I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse to grant leave and therefore dismiss his application.

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