Two Filipina former helpers who overstayed after giving birth in Hong Kong have failed in their case challenging the Immigration director’s orders for their deportation.The two mothers, identified only as RMA and GDC in separate cases that the High Court heard jointly on Jan 27, 2016, sought the review to prevent being sent home so they could be with their resident children.
In a judgment on Mar 23, High Court Judge Thomas Au dismissed the applications, saying the applicants failed in all their grounds for seeking a judicial review.
“In relation to the RMA judicial review, I would also set aside the ex parte leave on the basis of material non-disclosure,” the judge said.
The Court of First Instance took on the cases of RMA and GDC jointly because the first applicants are both mothers who have overstayed in Hong Kong and the second applicants are their children sired by Hong Kong resident fathers and born here.
RMA entered Hong Kong in 1998 to work as a domestic helper but her contract was prematurely terminated by her employer on June 28, 2002, the court said.
At the time, she had borne a child by her Filipino lover, a Hong Kong permanent resident. She gave birth on Jul 22, 2003 to SC, the second applicant, who became a Hong Kong permanent resident.
The man left both mother and child and got married in the Philippines in 2006. RMA surrendered to Immigration with SC in April 2007 and both were allowed bail.
RMA initially told Immigration she wanted to go home with her child but changed her mind and stayed on. The Immigration Director issued a removal order on Feb 14, 2008. She later cohabited with a Nigerian torture claimant with whom she had a daughter in 2011 and a son in 2012.
Applicant GDC, like RMA, came to Hong Kong in 1999 to work as a helper but was prematurely terminated in September 2010 when she wanted to go home “for rest”. She was pregnant at the time.
She applied for an extension of her visitor visa on the ground she was pregnant and needed to see a doctor every month. She was allowed to stay until Oct 1, 2010 but she then overstayed.
GDC gave birth in January 2011 to JDS, who became a Hong Kong permanent resident receiving CSSA and attending school here. On Oct 15, 2011, she applied for a visa extension but it was then discovered that she had overstayed for over a year.
She told Immigration she was afraid of going home as her husband and parents did not know she got pregnant. When her husband found out, he threatened to kill her. She surrendered when she realized it was difficult to hide. Her visa extension was refused.
In an interview with Immigration in late October 2011, GDC indicated she wanted to go home “as soon as possible because [she] wanted to settle with [her] husband in Philippines if he could accept [her]”.
In January 2012, she also lodged a torture claim, saying her husband would kill her and JDS if they returned to the Philippines. The torture claim was still being processed then.
Gladys Li SC of Daly and Associates represented the applicants in both judicial reviews.
The two cases were granted leave for judicial review on Mar 30, 2015 and the Immigration Director filed his evidence opposing the application about five months later on Aug 19, 2015 (in the RMA judicial review) and Aug 12, 2015 in the GDC judicial review.
The Director’s complaints of material non-disclosure in RMA’s case are these: She failed to disclose when she made her ex parte application for leave on a number of occasions.
“RMA is guilty of material non-disclosure and the leave application should be set aside also on this basis,” Judge Au said.
He said the applicants failed in all their grounds of judicial review and dismissed the applications on merits. In relation to the RMA judicial review, he set aside the ex parte leave on the basis of material non-disclosure.
He ordered that the costs be taxed if the parties failed to reach agreement
