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HCAL 1398/2019
[2024] HKCFI 866
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1398 of 2019
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Yerro Joy Morondoz |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 4 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant has a daughter, named Abbas Alishba, born on 13 January 2016, who was also an applicant before the immigration officer and the Board. However, in this action, the daughter is not a party. On Form 86, the daughter was first named therein, but was subsequently deleted.
3. A hearing was fixed for the applicant to clarify the matter to take place on 13 September 2023. Due notice of hearing had been given to the applicant, however, the applicant was absent without prior notice to the Court.
4. The clerk was instructed to call the applicant in order to find out the reason. But the lady who answered said the phone number is correct but she is not the applicant. Another hearing was fixed to be heard on 29 January 2024 for her. However, the applicant was absent.
5. In the circumstances, the reason for not having the daughter as one of the parties is unknown to the Court and the Court will consider the application on paper as per Form 86.
The applicants
6. The applicant is a national of the Philippines. She had worked in Hong Kong as a foreign domestic helper. Her last employment contract allowed her to remain until 2 September 2017. However, it was prematurely terminated on 16 February 2017 but she failed to leave within 2 weeks as required and had overstayed since 3 March 2017. On 9 March 2017, she surrendered to the Immigration Department. Meanwhile, the applicant gave birth to her daughter on 13 January 2016. The Daughter was allowed to stay in Hong Kong until 2 September 2017 but she did not depart and had overstayed. By way of written submissions on 11 July 2017, 15 September 2017, 28 September 2017 and 12 October 2017 respectively, the applicant, on behalf of herself and her daughter lodged the non-refoulement claims. As their claims were based on the same factual basis, they were assessed jointly.
7. The applicant’s claims were made on the basis that, if refouled, she would be harmed or killed by her husband Asuncion Rowell De Vera as the daughter was born out of wedlock. She also feared that they would become homeless or be subjected to derogatory treatment by the Christian community. According to the applicant, her husband had been abusive since they got married. In 2011, the applicant started her overseas employment in Hong Kong. In 2013, she developed a romantic relationship with her ex-boyfriend, the father of the daughter. She had been kept this as a secret as her family members were devoted Christian and would disapprove of the birth of the daughter.
8. On 16 March 2016, the applicant returned to the Philippines for vacation. She was again abused by her husband. Later, when the applicant returned to Hong Kong, she confided her secret to a cousin of her husband. In December 2016, the applicant received a phone call from her husband who threatened to kill her and her daughter upon knowing the extramarital affair.
9. Further, the applicant learnt from her mother and sister that her husband had taken out his anger towards them and had been harassing them. As her husband did not stop coming to her family house, the applicant decided that they should seek protection in Hong Kong. Details of their claims are set out at paragraph 6 of the Notice of Decision dated 27 February 2018 by the Director (the “Director’s Decision”).
The Director’s Decision
10. The Director considered the applicants’ claims in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
11. By way of the Director’s Decision, the Director dismissed the applicant’s and her daughter’s claims. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to them [15]-[16]; and (iii) internal relocation was a viable option [17]-[20].
The Board’s Decision
12. The applicant and her daughter appealed the Director’s Decision to the Board. On 19 September 2018, the Board conducted an oral hearing for their appeals. The applicant was present before the Board.
13. The Board recapped the applicant’s and her daughter’s personal background and their claims [22]-[43]. It also considered the applicant’s oral testimonies [48]-[59]. Having considered the evidence, the Board made the following findings. First, the Board considered the applicant’s marriage with her husband, and the country of origin information (“COI”) about children born out of wedlock. It found that the applicant’s claim that they would be subject to derogatory treatment because of the daughter’s birth status was misplaced [64]. It also noted that the applicant’s evidence about the exposure of her affair was inconsistent [65]-[67]. Second, the Board rejected the applicant’s evidence about the influence of her husband through his allegedly well-connected uncles in the police force and found that the applicants could seek protection from the authorities [68]-[80]. Thirdly, the Board found that the COI indicated that internal relocation was a viable option for the applicant and her daughter [81]-[85]. As a result, the Board rejected the applicant’s and her daughter’s claims and dismissed their appeals.
Application for leave to apply for judicial review of the Board’s Decision
14. The applicant has filed Form 86 dated 23 May 2019 for leave to apply for judicial review of the Board’s Decision.
15. The applicant has raised no specific ground in support of her application.
DISCUSSION
16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
19. For the reasons given in paragraph 13, the Board rejected the applicant’s evidence. The applicant has raised no valid ground to challenge the Board’s Decision.
20. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
21. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 11th day of April 2024
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(M.O. WONG)(Ms)
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:
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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)).
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Sent to the Applicant
on 11/4/2024
Yerro Joy Morondoz
Applicant’s ref. no:
Nil
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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 11/4/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10772/18/3/224/F641;
USM 10773/18/3/225/F642
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 50/18 (formerly RBCZ 11754/17) &
QA T/C 46/18 (Formerly RBCZ 11755/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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