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HCAL 2024/2019
[2024] HKCFI 2558
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 2024 OF 2019
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BETWEEN
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Macugay Levy Lamorena |
1st Applicant |
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Fernando Joel Rudolf Waas Lamorena |
2nd Applicant |
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The Torture Claims Appeal Board / |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
4 September 2024 |
| Date of Judgment: |
7 October 2024 |
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J U D G M E N T
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THE APPLICATION
1. The 1st applicant is the mother, aged 58 and the 2nd applicant, aged 25 is her son.
2. The applicants jointly apply for leave to apply for judicial review of the Decision dated 26 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Their joint application relies upon the facts of the 1st applicant.
3. The applicants requested a hearing. However, they were absent at the hearing on 4 September 2024. Although the Immigration Department has sent to the Court a letter with an address different from the old one, the judicial clerk had called the 1st applicant to remind her of the hearing shortly before the hearing. The 1st applicant indicated that she would not attend the hearing. In the circumstances, the applicants have already had notice of the hearing. I shall deal with their joint application on paper.
4. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicants
5. The applicants are Filipinos. The 1st applicant gave birth to the 2nd applicant on 12 December 1998 when she was working as a foreign domestic helper in Hong Kong. The last employment contract of the 1st applicant was prematurely terminated on 24 July 2009 and the 1st and 2nd applicants (“the applicants”) overstayed since 8 August 2009. The applicants surrendered to the Immigration Department on 25 October 2010 and they made a torture claim on 15 August 2011. On 28 September 2011, the 1st applicant was convicted of overstaying and was sentenced to imprisonment of two months suspended for two years. The applicants’ torture claim was rejected on 29 May 2012 and their subsequent appeal were also dismissed on 26 July 2012. The applicants lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 5 July 2013. The claim was made on the basis that, if refouled, they would be harmed or even killed by the family members of the 1st applicant because she gave birth to the 2nd applicant out of wedlock. The 2nd applicant also feared discrimination for being unable to fit into the Filipino culture.
6. According to the 1st applicant, she first met the 2nd applicant’s father in 1998 while in the Philippines. She found herself pregnant when she returned to Hong Kong. On 12 December 1998, the 1st applicant gave birth to the 2nd applicant. In late 2009, after her last employment contract was prematurely terminated, the 1st applicant informed the birth of the 2nd applicant to her mother and told her that she would no longer be able to support her financially. The 1st applicant’s mother became angry and refused to speak to her. Their last contact was in 2011.
7. In December 2017, the 1st applicant was informed that her mother had passed away when she contacted her family. She was told by her brother that she would not be accepted because she had brought disgrace to the family for having a child born out of wedlock.
8. Meanwhile, the 2nd applicant feared that he would not be able to fit into the Filipino culture because he was raised in Hong Kong and could not even speak/write Filipino language.
9. The applicants were of the view that they could not seek help from the authorities because they were corrupt. They also considered internal relocation not viable because they had no relatives elsewhere within the Philippines. In any event, discrimination existed all over the country, so that relocation would not make a difference.
10. Details of the story of the applicants’ can be found in paragraph 8 of the Director’s Decision dated 30 October 2018 (“the Director’s Decision”).
The Director’s Decision
11. The Director considered the applicants’ claims in relation to the following risks:
(a) 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”);
(b) 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
(c) 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”).
12. By way of the Director’s Decision, the Director dismissed the applicants’ claims. The Director found that: (i) the low intensity and frequency of past ill-treatment from the 1st applicant’s family indicated their small future risk of harm upon their return to the Philippines [16]; (ii) the claimed discrimination against the 2nd applicant was merely a speculation [16]; (iii) the delay in applying for non-refoulement protection indicated that the risk of harm was not as imminent as claimed [17]; (iv) state protection would be available [18]-[22]; (v) internal relocation would be viable [23]-[29] and (vi) the applicants’ cases failed to meet any of the requirements under BOR 2 and BOR 3 risk [30]-[35] or Persecution risk [36]-[41].
The Board’s Decision
13. The applicants appealed the Director’s Decision to the Board. On 2 April 2019, the Board conducted an oral hearing.
14. Regarding the 1st applicant, the Board considered she was not a truthful witness and rejected her evidence about the 2nd applicant’s father [41]-[44]. The Board preferred the 2nd applicant’s evidence that his father met and formed a relationship with the 1st applicant when they were working for the same employer in Hong Kong [45]. Although the Board accepted that the 1st applicant’s family in the Philippines became upset when they knew she had entered into a relationship with another man and had a child while in Hong Kong, her claim that she received threats from her family was rejected [46]-[47]. Furthermore, the significant delay on the 1st applicant’s part in making a non-refoulement claim was also inconsistent with her claimed fear of harm in the Philippines [48].
15. In relation to the 2nd applicant, the Board accepted that his father had not married the 1st applicant, so that he would be an illegitimate child. The Board also accepted that the 1st applicant’s family might not wish to have any contact with the 2nd applicant [50]. Yet, given that the 2nd applicant had already become an adult, any stigma associated with being an illegitimate child would have significantly lessened. In any event, single parent families were not uncommon in the Philippines [52]. Meanwhile, there was also insufficient evidence showing that the 2nd applicant would face discrimination because of his skin colour and language ability [53]-[54].
16. Having considered the evidence of the applicants, the Board accepted that they were apprehensive about returning to the Philippines. However, the Board was not satisfied that any difficulties they may have in establishing themselves in the Philippines or any low level of discrimination the 2nd applicant might face constitute grounds for non-refoulement claim [55]. Moreover, there was no indication that anyone would seek to harm the applicants upon their return to the Philippines [56].
17. Based on such findings, the Board concluded that the applicants’ cases failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [58]-[71]. The applicants’ appeal was therefore dismissed and the Director’s Decision was confirmed.
Application for leave to apply for judicial review of the Board’s Decision
18. The applicants filed Form 86 on 16 July 2019 for leave to apply for judicial review of the Board’s Decision.
19. In the 1st applicant’s affidavit in support of their joint application, the 1st applicant did not raise any specific reason to challenge the Board’s Decision.
DISCUSSION
20. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
21. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
22. For the reasons given above, the Board was entitled to reach its conclusion as it did.
23. The applicants have not raised any valid reason to challenge the Board’s Decision.
24. There is no reason for this Court to interfere with the Board’s finding of the facts.
25. The applicants fail to show that they have a realistic prospect of success in their intended judicial review of the Board’s Decision.
DISPOSTION
26. I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.
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(K.W. Lung)
Deputy High Court Judge
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The applicants were unrepresented and did not appear.
[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115
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