ISIDRE CATLEAH DELMONTE v. DIRECTOR OF IMMIGRATION

HCAL 1009/2018

[2019] HKCFI 3105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1009 OF 2018

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D E C I S I O N

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1.  This is an application by the Applicant for leave to apply for judicial review of the decision of the Assistant Director of Immigration to make a removal order against her dated 20 February 2018 (“the Removal Order”)[1]. In the Form 86 dated 4 June 2018, the Applicant seeks a review of the decision and asks to be allowed to stay in Hong Kong. However, no ground for the relief sought is given in the Form 86.

2.  The Applicant is a Philippine national born on 23 July 1979. She came to Hong Kong to work as a foreign domestic helper on 21 May 2016. Her employment contract was terminated on 3 June 2016.

3.  On 15 July 2016, the Applicant last arrived in Hong Kong and was permitted to remain as a visitor with limit of stay till 29 July 2016. However, she failed to leave Hong Kong on or before 29 July 2016, and has been overstaying in Hong Kong since 30 July 2016.

4.  On 8 August 2016, the Applicant surrendered herself to the Immigration Department. She was subsequently prosecuted for the offence of breach of condition of stay. On 14 September 2016, she was convicted of the said offence, and sentenced to 2 weeks’ imprisonment suspended for 3 years.

5.  On 13 October 2016, the Applicant lodged a non-refoulement claim.

6.  On 20 February 2018, the Director made the Removal Order against the Applicant on the ground that she was an overstayer and did not have any right or permission to remain in Hong Kong. On 5 March 2018, the Removal Order was served on the Applicant. On 6 March 2018, the Applicant lodged an appeal against the Removal Order. On 27 March 2018, the Immigration Tribunal dismissed the appeal.

7.  On 19 September 2018, the Applicant’s non-refoulement claim was rejected by the Director. On 19 July 2019, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dismissed the Applicant’s appeal/petition against the Director’s decision to reject her non-refoulement claim. On 22 July 2019, the Applicant filed an application for leave to apply for judicial review against the refusal decisions of her non-refoulement claim in HCAL 2093/2019. This application has, I understand, not yet been dealt with by the court.

8.  The execution of the Removal Order has been suspended originally pending the determination of the Applicant’s non-refoulement claim, and now pending the determination of HCAL 2093/2019. The Applicant is currently released on recognizance.

9.  The fact that an overstayer has made a non-refoulement claim is not a ground against the making of a removal order against that person who does not have any right or permission to remain in Hong Kong (see A v Director of Immigration [2008] 4 HKLRD 7562, at §§20-25).

10.  In her affirmation dated 4 June 2018, the Applicant claims that she has left ear drum problem, and that if she is sent back to her home country, her life will be in great danger. In so far as her left ear drum problem is concerned, that is not a matter relevant to the question of whether the Removal Order is lawfully issued. In relation to her claim that her life will be in great danger if she is sent back to her home country, that is a matter which has been dealt with by the Director and the Board in the assessment of her non-refoulement claim, and will be considered (where appropriate) by the court when dealing with her application for leave to apply for judicial review in HCAL 2093/2019.

11.  There is nothing in the materials before the court to indicate that the Assistant Director’s decision to make the Removal Order is unlawful or Wednesbury unreasonable, or that the decision making process is procedurally unfair.

12.  In all, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success. Accordingly, the application for leave to apply for judicial review is dismissed. In view of the clear lack of merits of the application, and the fact that there has effectively been a substantive consideration of the Applicant’s application, I would make an order that the Applicant shall pay the costs of the Director, to be taxed if not agreed.