Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Pa v Director Of Immirgration

Judgment Cited authorities 5 Cited in 1 Precedent Map Related
Vincent
Judgment Date15 August 2019
Neutral Citation[2019] HKCFI 2019
Year2019
Judgement NumberHCAL1668/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL1668A/2018 PA v. DIRECTOR OF IMMIRGRATION

HCAL 1668/2018

[2019] HKCFI 2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1668 OF 2018

________________________

BETWEEN
PA Applicant
and
DIRECTOR OF IMMIRGRATION Putative
Respondent

________________________

Before: Hon Chow J in Court

Date of Hearing: 22 May 2019

Date of Decision: 15 August 2019

________________

JUDGMENT

________________


INTRODUCTION

1. This is the Applicant’s application for judicial review of a decision, or alleged decision, made by the Director of Immigration (“the Director”) on 18 May 2018 to, without any or sufficient notice, compulsorily remove the Applicant from Hong Kong to Sri Lanka, the country in which the Applicant had claimed to be at risk (“the Decision”).

2. There are, in addition, 2 other applications by the Applicant before the court:

(1) an application to amend the Form 86, and

(2) an application to adduce and rely upon the 1st Affirmation of Michael John Vilder dated 25 January 2019 (“Vidler 1”).

BASIC FACTS

3. The Applicant is a non-refoulement claimant. She first came to Hong Kong from Sri Lanka on 27 September 2012 for employment as a foreign domestic helper. Her employment contract was prematurely terminated on 27 December 2012, and she left Hong Kong on 16 February 2013.

4. On 18 February 2013, the Applicant submitted another application to the Immigration Department to work in Hong Kong as a foreign domestic helper. Her application was approved by the Immigration Department on 6 March 2016, and she returned to Hong Kong on 13 March 2013. Her employment contract was again prematurely terminated on 18 November 2013, as a result of which the Applicant was required to leave Hong Kong within 2 weeks from the date of the termination of the employment contract (ie on or before 2 December 2013). She did not, however, leave Hong Kong and overstayed here since 3 December 2013. The Applicant surrendered herself to the General Investigation Section of the Immigration Department on 13 January 2014.

5. On 5 February 2014, the Applicant made a non-refoulement claim. In essence, the claim was based on an allegation that the Applicant had been subjected to a forced marriage at the age of 14 (in 1984) in her home country with a man who was 11 years older than the Applicant, and she had suffered physical and sexual abuse by her husband, as well as by 2 other men arranged by her husband, after the marriage.

6. On 14 October 2015, the Applicant’s non-refoulement claim was rejected by the Director. On 26 October 2015, the Applicant filed a Notice of Appeal/Petition against the Director’s decision.

7. On 4 December 2015, the Director issued a removal order against the Applicant. On 21 December 2015, the Director served on the Applicant a “Notice of Removal Order and Right of Appeal” and a “Summary of Facts and Reasons for Removal”. By the former document, the Applicant was informed that (i) the Director had on 4 December 2015 made a removal order against her on the ground that she was contravening / had contravened a condition of stay, and (ii) the Assistant Director of Immigration had authorized her detention pending her removal from Hong Kong. The Applicant acknowledged receipt of both documents and confirmed that she understood the contents thereof. On 21 December 2015, the Applicant indicated that she did not intend to lodge any appeal against the removal order by signing a “Declaration of Intention Not to Appeal / Declaration of Abandonment of Appeal”.

8. On 13 January 2017, the Director rendered a further decision rejecting the Applicant’s possible non-refoulement claim based on HKBOR 2 (right to life). On 29 March 2018, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the TCAB”) rejected the Applicant’s Notice of Appeal/Petition on all applicable grounds (“the TCAB Decision”).

9. Up to 25 April 2018, the Applicant had been on recognizance in lieu of detention. On that day, a review of whether the Applicant ought to continue to be released on recognizance was conducted. Taking into account the fact that the Applicant’s appeal / petition to the TCAB had been dismissed and her non-refoulement claim had been finally determined and other circumstances of the Applicant’s case, the Director considered that the Applicant’s removal from Hong Kong was possible within a reasonable time and decided that the Applicant’s recognizance should cease.

10. On 25 April 2018, the Applicant attended the Castle Peak Bay Immigration Centre (“CIC”) to answer her recognizance. She was interviewed by an immigration officer (Mr Tsang). As recorded in a file note of the interview kept in the Immigration Department’s File No RBCL/834/14, during the interview, the Applicant’s immigration status was explained to her, and she was informed that her removal was imminent subject to any legal impediment (of which there was in fact none at that time). The Applicant was then detained pending her removal from Hong Kong.

11. The Applicant says that, at the processing desk at the CIC, she showed to the immigration officer her “Application for Legal Aid (Civil) forms” and the TCAB Decision. She informed the immigration officer that she was appealing against the TCAB Decision, and that she was being assisted by Justice Centre Hong Kong (“JCHK”). The Applicant further alleges that she was informed, in no uncertain terms, by the immigration officer that her case was “over” and there was nothing further that she could do. In the draft Amended Form 86, at paragraph 9.2, it is contended that by omitting the availability of judicial review, there was a material misstatement of the Applicant’s legal position. The allegation that the Applicant was told by an immigration officer that her case was “over” is not accepted by the Director. In any event, there is no suggestion that the Applicant was mis-led in any way into believing that her case was indeed “over”. On the contrary, it is clear that the Applicant knew and acted on the basis that her case was not “over”, as shown by the fact that she informed the immigration officer that she was appealing against the TCAB Decision, and by her subsequent conduct described below.

12. Upon admission to the CIC, the Applicant was issued, and signed, a Leaflet in Sinhalese setting out her rights, welfare, treatment and channels of complaint during her detention at the CIC. The Applicant also signed a “Detainee Personal Data Declaration Form”. In that form, the Applicant stated that she could read and write English. The Applicant says, however, that the form was completed by an immigration officer and she was merely instructed to sign at the bottom of it, and there was no interpreter present on that occasion to translate the contents of the form to her[1].

13. The Immigration Department then made arrangements for repatriating the Applicant to Sri Lanka. On 27 April 2018, funding commitment was made for procuring an air ticket for the Applicant’s return to Colombo, Sri Lanka. On the same day, another interview was conducted with the Applicant by an immigration officer. There is no dispute that no Sinhalese interpreter was present at that interview[2]. As recorded in an internal minute (M18) kept in the Immigration Department File CL/834/14, the Applicant was informed of the case development, and she expressed her unwillingness to return to her home country. The Applicant says that she told the immigration officer that she wished to appeal against the TCAB Decision and was waiting for assistance from a lawyer. She also says that she told the immigration officer that she wanted to apply for legal aid and JCHK was assisting her with that[3].

14. On 7 May 2018, the Immigration Department secured a flight ticket for the Applicant’s return to Colombo, Sri Lanka, via Mumbai, India, at 7:45 pm on 18 May 2018.

15. The Applicant sent a letter to Mr Barnes, her former Duty Lawyer who had acted for her in the proceedings before the TCAB. On or about 11 May 2019, the Applicant received Mr Barnes’ reply letter dated 9 May 2018, who advised her to make an urgent application to the Legal Aid Department for legal aid to apply for judicial review of the TCAB Decision, and that she could ask a welfare officer at the CIC for assistance.

16. According to the Applicant, on 11 May 2018 (Friday), she showed the letter that she had received from Mr Barnes to 2 welfare officers, and asked for assistance in relation to her application for legal aid. She was, however, told that it was too late in the day, and she should make a formal request on next Monday[4]. This allegation is not accepted by the Director[5]. According to Mr Pak Chun Hung, Acting Chief Immigration Officer at the CIC, generally speaking, a detainee is allowed to request a welfare officer for assistance to submit an application form for legal aid and other court forms, eg an application for leave to apply for judicial review. The request would be submitted to the Chief Immigration Officer at the CIC for approval. After such approval has been given, the welfare officer would prepare the relevant application form for the detainee concerned. The completed application form for legal aid would be sent to the Legal Aid Department without delay. For a judicial review application, the Escort Team at the CIC would arrange the detainee to file in person his/her application form at the High Court Registry. Such matters would be recorded in the detainee’s records at the CIC. There are, however, no records that the Applicant ever asked for assistance in relation to any application for legal aid on 11 May 2018 as alleged by the Applicant.

17. On 12 May 2018, JCHK sent to the Applicant a “second” copy of the legal aid...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT