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HCAL 2961/2018
[2020] HKCFI 3033
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2961 OF 2018
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Macaganda Eleanor Balbag |
1st Applicant |
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Subbaiyah Amarkalam |
2nd Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicants:
1. The 1st applicant came to Hong Kong on 4/12/2012 as a foreign domestic helper (‘FDH’) on a two-year-contract. Her contract was terminated on 19/11/2014. She overstayed since 4/12/2014.[1]
2. On 13/6/2015, she was arrested for overstaying. She filed the non-refoulement claim on 13/7/2015. She was granted recognizance on 14/8/2015.
3. She gave birth to the 2nd applicant in Hong Kong on 10/5/2016. She applied for the non-refoulement claim on behalf of the 2nd applicant on 10/2/2017.
Background
4. The 1st applicant was born on 14/5/1983 in Bangui, Ilocos Norte, Philippines. She was married with a daughter and a son. She received education for 10 years. She was a FDH in Singapore (2008-2011) and in Hong Kong (2012-2014).
5. The relationship with her husband [2] had been deteriorating since 2002 after the birth of her first child. There were frequent occasions of domestic violence. In 2003, she was assaulted by her husband with a bottle. She needed medical treatment. It took 1 week to recover. She put up with her husband until 2008. She left to work in Singapore. Her mother took care of her children. In December 2008, her husband came to her mother’s house and tried to take away her son. Her mother had to report to the police. It was resolved when the police and social welfare department intervened. Since then, she did not communicate with her husband.
6. In 2011, she returned to the Philippines. She and her children lived at her mother’s house. Her husband kept on harassing her. She wanted to stay away from him. She therefore applied to work in Hong Kong. After the contract ended in 2014, she could not find a new one. She overstayed in Hong Kong.
7. In 2014, she started a relationship with Subbaiyah Mohandas[3] in Hong Kong. Eventually, they had a son. [4]
8. She did not report her husband’s conduct to the police in the Philippines. She thought her husband could bribe the police. There was no one to assist her in making a complaint. She had no relatives in other cities in the Philippines. She could not relocate.[5]
9. When her husband learnt about her relationship with another man, he was furious and told her mother that he would kill her. He even vandalised her mother’s house.[6]
10. She and her son would be in great danger from her husband if both returned to the Philippines.
The decision of the Director
11. The Director found that the future risk of harm to her and her son was low. The Director based on the following:
a. There was no evidence of serious injuries in the 5 years that she tolerated the domestic violence.
b. Her husband never injured her mother despite he went to her mother’s house quite often.
c. There was no evidence that the authorities in the Philippines would not assist her if she reported the case to them.
d. On the occasion when her husband took away their son, the police and the social welfare department stepped in to settle the matter. This showed the authorities of the Philippines would enforce the law.[7]
12. The Director acknowledges the corruption problem in the Philippines. There was also lack of confidence in the criminal justice system. The latter might aggravate domestic violence cases. There was insufficient assistance to abused wives. Nevertheless, there were continuous effort to reform and ensure law and order. The Ombudsman office was vigilant in monitoring public officials. There was NGO assisting abused women. Domestic violence was a criminal offence. The government had stepped up the legal and non-legal protections. The Director concluded that there was reasonable State protection. [8]
13. The constitution of the Philippines allowed internal movement. Cebu and Manila would be possible relocation alternatives. Her husband could not locate her anywhere in the Philippines. There were government institutions and NGO assisting abused women. The applicants should be able to relocate. It was not unduly harsh.[9]
14. The Director rejected all claims of both applicants on 31/1/2018 as follows:[10]
a. There was no evidence to support that there would be real and personal risk of ill-treatment if both of them returned to their home country. There was reasonable State protection and relocation alternatives. BOR 3 failed.
b. There was no risk that both applicants would be subject to arbitrary deprivation of life given the evidence. BOR 2 failed.
c. The dispute was a private matter. Nothing related to the categories of persecution under the Refugee Convention. There was reasonable State protection and reasonable relocation alternatives. Persecution risk was not established.
d. No severe pain or suffering had ever been inflicted upon both applicants. It was a private domestic problem. The State was not involved. There was State protection. The torture risk failed.
The decision of TCAB
15. The adjudicator held a hearing on 3/9/2018. The adjudicator rejected her claims on 7/12/2018. The adjudicator pointed out the following important aspects:[11]
a. In the 2003 assault, she was not seriously injured. She was only treated in a health clinic. There were subsequent assaults. She did not report to the police although she was aware that was the only way to stop her husband.
b. As to the alleged abduction incident, she was not certain about the time. She was not certain if it was his son or daughter who was taken away. She was informed of it only after the incident.
c. She was wrong to speculate that her husband had inherited all the pension of his father. This was against the law in the Philippines.
d. The 1st applicant had left the matrimonial home with her children since 2008. It had been 10 years that they lived apart. It was unlikely that her husband expected her to return to the matrimonial home.
e. In fact, the behaviour of her husband constituted grounds for divorce in the Philippines.
f. The 1st applicant admitted that she wanted to go back to the Philippines with the 2nd applicant. However, she was not sure if she could find a job back home.
16. The adjudicated had considered various COI. She found that there were a number of organizations, government or NGO, which offered assistance to women and children. There were trainings to the police in human rights. There was the Ombudsman office which monitor human rights abuses. The government had taken steps to tackle corruption. The adjudicator found that there was reasonable State protection. [12]
17. The adjudicator pointed out that the 1st applicant was free to relocate. There were major cities such as Manila which were reasonable alternatives for relocation. The constitution specifically provided for that. [13]
18. The adjudicator rejected all claims of both applicants as follows:[14]
a. There was never any ill-treatment which amount to “a minimum level of severity”. Her mother and the two children in the Philippines were not ill-treated. The risk of ill-treatment was low. Given the reasonable relocation alternatives, the risk was even lower. In fact, the 1st applicant should be able to divorce her husband under the law. BOR 3 claim failed for both applicants.
b. The threat from her husband did not fall into any of the Convention categories. The 1st applicant’s fear was not well founded. Persecution risk failed for both applicants.
c. There was no evidence to establish a real risk that their lives would be in danger. BOR 2 claim failed for both applicants.
d. The evidence did not amount to torture within the definition of the Immigration Ordinance. There was no State or public official involved. The 1st applicant chose not to report to the police. This claim failed.
Judicial review
19. The 1st applicant filed an application for leave for judicial review on 24/12/2018.In her affidavit in support, she did not point out any specific error in the decisions of the Director and the TCAB.
20. In my view, the decisions are supported by the evidence. I am satisfied that there is no error of law nor is there any procedural irregularity. They are not irrational.
21. As the claim of the 2nd applicant is part and parcel of the 1st applicant’s claim. There is no independent evidence in relation only to the 2nd applicant. Both applicants’ claim would stand or fall together.
Conclusion
22. For the reasons above, the Applicants’ claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated 4th day of December 2020
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicants
on 4 December 2020
Macaganda Eleanor Balbag
(1st Applicant)
Subbaiyah Amarkalam
(2nd Applicant)
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4 December 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10367/18/2/251/F574; and USM 10368/18/2/252/F575
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3488-89/17
(formerly RBCZ 12210/15, RBCZ 11117/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] She was allowed 14 days to leave Hong Kong after termination of contract.
[2] Her husband was imprisoned for 6 months for an offence.
[3] An Indian FDH working in Hong Kong.
[4] Decision of the Director, paragraphs 7.4-7.10.
[5] Decision of the Director, paragraphs 7.11-7.12.
[6] Decision of the Director, paragraph 7.13.
[7] Decision of the Director, paragraphs 15-19.
[8] Decision of the Director, paragraphs 20-23.
[9] Decision of the Director, paragraphs 24-28.
[10] Decision of the Director, paragraphs 29-43.
[11] Decision of the TCAB, paragraphs 20-21.
[12] Decision of the TCAB, paragraphs 37-52.
[13] Decision of the TCAB, paragraphs 54-55.
[14] Decision of the TCAB, paragraphs 41-50.
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