VILLA ERLINDA BALIDO v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 922/2017

[2018] HKCFI 1230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 922 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 64-year-old national of the Philippines who last arrived in Hong Kong on 13 August 2009 with permission to remain as a domestic helper until the expiration of her employment contract on 13 August 2011 or within two weeks of its early termination, but when her employment was prematurely terminated on 28 March 2010 she did not depart after the expiration of 14 days and instead overstayed until 3 August 2015 when she surrendered to the Immigration Department, and subsequently lodged her non-refoulement claim on 31 March 2016 on the basis that if she returned to the Philippines she would be harmed or killed by her husband. 

2.  The applicant was born and raised in Solano, Nueva Vizcaya, the Philippines where her husband and a daughter still live. After leaving school she worked as a tailor, and after she married her husband and gave birth to two children, she started working as a domestic helper in Hong Kong since 1992, returning home to the Philippines only for visits during holidays.

3.  In 2005 when she returned to the Philippines to visit her son dying from cancer, she had a heated argument with her husband during which he slapped her once on the face and threatened to kill her as he blamed her for what happened to their son.  After her son’s death the applicant returned to Hong Kong to resume her employment, but shortly thereafter she learnt from her daughter that her husband was having affairs with other women, and when she then called her husband and demanded that he leave her house, her husband refused and said that he would never do so.  The applicant became so upset that she had since never seen or spoken to her husband again, and when her last employment contract was terminated in 2010, she did not leave Hong Kong because she claimed she could not return to the Philippines as her husband was occupying her house and that her daughter had written to warn her of further threats from her husband, and hence she subsequently lodged her non-refoulement claim for which she on 28 June 2016 completed her Non-refoulement Claim Form (“NCF”) with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 8 August 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

5.  In his decision the Director found even on the applicant’s case that the risk of harm from her husband upon her return to the Philippines as very low given the fact that any threats made by him was in a heated quarrel which took place back in 2005 with no further direct threats or contact with him for more than 10 years since other than her daughter’s letter, that it was a private domestic dispute that state and police protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines for the applicant to move to other cities away from her home district such as Quezon, Manila, Davao or Caloocan where she can live without any fear of harm from her husband.    

6.  By a Notice of Further Decision dated 1 August 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

7.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal she filed on 23 August 2016, and for which she attended an oral hearing on 8 September 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 3 November 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board agreed with the Director’s assessment that even on the applicant’s own evidence that she has not had been subjected to any serious harm from her husband in the past and with whom she has not had any contact since 2005, while little weight could be placed on the letter allegedly from her daughter in the absence of any corroborative evidence that it was written by her and sent from the Philippines and that at any rate it only referred to the same incident in 2005, and that even if such threats from her husband still persisted upon the applicant’s return to the Philippines, state and police protection would be available as well as reasonable internal relocation alternatives to her in other cities of the Philippines.  

9.  On 21 November 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 affirmation of the same date she set out her grounds for her intended challenge which can be summarized as follows:

(1) failure on the part of the Director and the Board to properly consider her fear of her husband;

(2) failure on the part of the Director and the Board to properly consider the risk of threats and harm from her husband;

(3) failure to conduct sufficient inquiry into COI in the consideration of her claim; and

(4) error/misdirection in law for failing to consider the psychological impact of the threats against her. 

10.  All of these grounds are however just general and vague statements with no substance or merits whatever, nor are there any specific errors being identified by the applicant, and given the clear findings of facts based on the applicant’s own case by both the Director and the Board of the only threats from her husband were those uttered verbally during a quarrel more than 10 years ago, and with state and police protection clearly available to her upon her return to the Philippines, I am unable to find any basis or merits in any of these grounds of the applicant. 

11.  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.

12.  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