MANIBOY WYLLENN MONTERO v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1067/2017

[2018] HKCFI 1319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1067 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;      or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 49-year-old national of the Philippines who last arrived in Hong Kong on 5 September 2003 with permission to work as a domestic helper until the expiration of her employment contract on 5 September 2005 when she did not depart and instead overstayed until 7 October 2016 when she was arrested by the police.  After she was referred to the Immigration Department for investigation, she lodged her non-refoulement claim on 17 October 2016 on the basis that if she returned to the Philippines she would be harmed or killed by her abusive husband or by people from her employment agency for failing to repay her loan.  She has since been released on recognizance pending determination of her claim. 

2.  The applicant was born and raised in Santa Ignacia, Tarlac, the Philippines where her husband and two children still live.  After leaving school she first worked as a factory worker in Manila, and starting from mid-1990s she worked as a domestic helper in Hong Kong, and in 1998 she married her husband who worked as a tricycle driver.

3.  In 1999 the applicant’s employment in Hong Kong was terminated and she returned to the Philippines during which she became pregnant with her first child and decided to become a housewife, but of which her husband was unhappy and started drinking at home, and when he was drunk he would become abusive towards the applicant by hitting her with slapping punching and kicking her even during her pregnancy but of which she never reported to the police because she thought it would be useless.

4.  By 2003 the applicant decided that she could not put up with her husband’s abuse anymore and returned to Hong Kong to work as a domestic helper.  In 2004 she borrowed HK$25,000 from her employment agency in the Philippines to pay off her debts due to her sister-in-law, and for which she would remit part of her monthly salary to her husband to repay her employment agency by installments.

5.  However, in 2004 she learnt that her husband did not use her monthly remittance to repay her employment agency, but had instead spent the money on himself and other women, and when she refused to send him any more money or to help him to pay off his own debts, her husband became very angry with her and threatened to kill her when she returned to the Philippines, while her employment agency was also looking for her for repayment of her debt, and so when her employment contract expired in 2005, she was too scared to return to the Philippines and therefore overstayed in Hong Kong and eventually lodged her non-refoulement claim, for which she subsequently completed her Non-refoulement Claim Form on 7 April 2017 with legal representation from the Duty Lawyer Service. 

6.  By a Notice of Decision dated 24 May 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of violation of her absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) including right to life under Article 2 of HKBOR (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.  In his decision the Director found the level of risk of harm from the applicant’s husband or from her employment agency as low due to the low intensity and frequency of past ill-treatment from them, that her disputes with them were private and family matters and that after all these years that it is doubtful that they would still have any adverse interest in her, that in the absence of any evidence of any involvement of the state or the police that state protection would be available to her if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 102 million people spread across a vast territory of more than 300,000 square kilometers that the applicant can move to areas away from her home district such as Manila where she can safely live and work free of any threats from her husband or the employment agency. 

8.  On 31 May 2017 the applicant filed her appeal against the Director’s decision to the Torture Claims Appeal Board (“the Board”), and attended an oral hearing on 1 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 1 December 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted that the applicant was in an abusive relationship to her husband whilst in the Philippines but found that even on her own admission that she has had no further contact with her husband since 2005, and hence there is no reason to consider that he still poses any ongoing threat to her in the event of her return to the Philippines, while she has also conceded that she is no longer facing any threat from her employment agency after all these years, and concluded on the evidence before it that the applicant does not face any real risk of harm in the Philippines. 

10.  On 13 December 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1)   procedural impropriety for failure to apply high standard of fairness in the consideration of her claim; 

(2)   error/misdirection in law for failure to consider the psychological impact of the threats against her;

(3)   procedural impropriety for failure to conduct sufficient inquiry into the relevant COI; and

(4)   irrationality for treating the threats against her as a private or family dispute.

11.  These are all very broad and vague assertions of the applicant without any particulars or specifics or elaboration as to how they applied to her case or how the Director or the Board had erred in their decision, while the Board was clearly entitled to find even on the facts of her own case that her dispute with her husband was a family matter while that with her employment agency over her debt a private one between them.  As for the psychological impacts these threats may have on the applicant, as already noted the Board did accept that the applicant was once in an abusive relationship with her husband during their marriage but the fact is that she left him in 2003 and has had no further contact with him since 2005 which was more than 12 years ago, and hence the Board was in my view correct to consider that the applicant no longer faces any real risk of threats from her husband in the circumstances after all these years upon her return to the Philippines.  I am simply unable to find any merits or basis in any of these grounds of the applicant.  

12.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

13.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.

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

Form CALL-1