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Re Morillo Eleja Loquinario

Judgment Cited authorities 2 Cited in 1 Precedent Map Related
Vincent
Judgment Date29 December 2020
Neutral Citation[2020] HKCA 1069
Judgement NumberCACV257/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV257/2020 RE MORILLO ELEJA LOQUINARIO

CACV 257/2020

[2020] HKCA 1069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2020

(ON APPEAL FROM HCAL NO 1773 OF 2018)

______________________________

RE: MORILLO ELEJA LOQUINARIO Applicant

______________________________

Before: Hon Yeung VP and Toh J in Court
Date of Hearing: 22 December 2020
Date of Judgment: 29 December 2020

__________________

J U D G M E N T

__________________

Hon Toh J (giving the Judgment of the Court):

Introduction

1. This is an appeal against the decision of K.W. Lung (“the Judge”) on 7 July 2020 in HCAL 1773/2018 refusing leave to the applicant to apply for judicial review. By that decision, the Judge refused her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 15 August 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 15 March 2018.

Background

2. The applicant is a national of the Philippines. She came to Hong Kong as a domestic helper since 1996. Her employment contract was terminated prematurely on 15 May 2009, but she did not depart and overstayed since 30 May 2009 Hong Kong. On 7 March 2015, she was arrested by police and was referred to the Immigration Department on 10 March 2015. On 19 March 2015, she lodged a non-refoulement claim on the basis that if she were to return to the Philippines, she would be harmed or even killed by her husband because he suspected that the applicant had an external martial affair with another man. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1368.

3. By the Notice of Decision dated 15 March 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4. The applicant appealed to the Torture Claims Appeal Board (“the Board”). After an oral hearing on 19 June 2018, the Board dismissed the appeal on 15 August 2018. The applicant denied that she had an extra-marital boyfriend and was only made up by rumor-monger out of spite in or about 2003. Further, the applicant was not in contact with her husband for a substantially long period of at least 22 years (since September 1996 after the applicant left Philippines for work) and if the husband was still serious about his relation with the applicant, he must have found ways to keep bothering the applicant and he had not done so. Judging from the “peace” or “lack of actions” from the husband in the past 15 years, the Board found that the husband is unlikely to any abusive action against the applicant. For the aforesaid reasons, the applicant had failed to substantiate that she qualified for non-refoulement protection on any of the applicable grounds.

The Judge’s decision

5. On 29 August 2018, the applicant filed her Form 86 to apply for leave for judicial review in respect of the decision of the Board. In her supporting affirmation, she set out the background of her case and advanced the following grounds for her intended challenge:

(1) Procedural impropriety: failing to conduct sufficient inquiry into the relevant country of origin conditions.

(2) Procedural impropriety / irrationality: failing to provide reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk.

(3) Error / misdirection in law: failing to take into account the considerations of psychological strain for threats to her personally or threats to her kill her directly.

(4) Insufficient basis to conclude that she would not be at risk of being subjected to torture and/or cruel, inhuman or degrading treatment or punishment (“CIDTP”).

6. By the CALL-1 Form of 7 July 2020, the application was refused. The Judge did not deal with the grounds of the applicant’s intended challenge. He dismissed the applicant’s application after due consideration of the Board’s decision in which he found no errors of law or procedural unfairness or irrationality in the Board’s decision.

The Appeal

7. On 13 July 2020 , the applicant filed her Notice of Appeal against the Judge’s decision. Her stated ground of appeal is as follows:

(1) failing to consider her claim under BOR3 risk that her life still in danger if refouled;

(2) failing to conduct sufficient inquiry into the country of origin that she would face risk of harm upon refoulement; and

(3) failing to consider her fear under all applicable grounds that her life is still at risk if refouled.

8. In compliance with the direction given by Master Tsui on 9 October 2020, the applicant lodged her written...

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1 cases
  • Re Morillo Eleja Loquinario
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 30 March 2021
    ...(Esther Toh) Vice President Justice of Appeal Judge of the Court of First Instance The applicant, unrepresented, acting in person [1] [2020] HKCA 1069 [2] (2004) 7 HKCFAR 187 [3] [2013] 1 HKC 526 ...

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