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HCAL 2205/2018
[2021] HKCFI 3479
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2205 of 2018
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Manuel Trinidad Aguilan |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
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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 Applicant:
1. The applicant worked as a domestic helper in Hong Kong since 1994. Her contract was terminated prematurely in 2000. She overstayed since 2/11/2000. She was arrested by the police on 2/6/2007 for various offences [1]. She was later sentenced to imprisonment for a total of 8 years and 6 months. She raised the non-refoulement claim in this case on 3/3/2014.
Background
2. The applicant was born in San Emilio, Ilocos Sur of the Philippines on 15/12/1966. She completed 11 years of education in the Philippines. She had worked as a receptionist in Dubai (1989—1991). She worked as a domestic helper in Hong Kong from 1994 to 2000.
3. The applicant claimed that if she returned to the Philippines, she would be harmed or killed by her former partner Mario (“M”) and her brothers, Daniel (“D”) and Leonardo (“L”). The reason being that she had converted to Islam.
4. The applicant alleged that she was raped by “D” in 1991. Her mother told her not to report to the police. In order to cover up the rape, “D” and her mother forced her to marry “M”. She started cohabiting with “M” in 1991. They were not officially married. She gave birth to her daughter on 19/9/1992.
5. “M” was a heavy drinker. He had physically assaulted her on many occasions. She had bruises all over her. She could not afford any medical treatment. She did not think the police would assist.
6. There was an incident that “M” kicked her severely that it took her weeks to recover. There was another incident that “M” tried to push her and her daughter out of his car. She suffered serious pain during the struggle.
7. She came to Hong Kong as a domestic helper in January 1994. She sent $1000 back to “M” each month until her employment was terminated in 2000.
8. In 1995, while she was back to the Philippines for holiday, she had an argument with “M” on the custody of her daughter. She was assaulted by “M”. She did not seek treatment. “M” always refused to let her talk to her daughter on the phone.
9. She met her current partner [2] in Hong Kong in 2003. She had converted to Islam in 2007. Her family was angry about her conversion and the relationship with her partner. Her brothers threatened to bury her alive. “M” also threatened to kill her on knowing her conversion.
10. She and her partner were arrested for trafficking in a dangerous drug in 2007.
11. She last contacted her family in 2013. They repeated the death threat. She had no place to stay elsewhere in the Philippines. She asserted that the police were corrupt and would not perform their duties.
The Decision of the Director
12. The Director of Immigration dismissed her claims on 4/6/2015 which covered the BOR 3 risk[3], the persecution risk[4] and the torture risk[5]. The Director found that there was low risk of harm to the applicant. The reasons were as follows:[6]
(a) She had lost contact with her family since 2013. Her family did not want to contact her. There was nothing to suggest that “M” and her brothers were capable of locating her if she chose to relocate to other parts of the Philippines. There was no involvement of any public official.;
(b) She maintained her relationship with “M” despite the domestic violence. She gave birth to her daughter in 1992. She kept on sending money to “M” until 2000. When she returned to the Philippines for holiday, she stayed with “M”. This showed that she was not afraid of “M” despite the violence.
(c) There was no evidence that “M” had the resources to locate her. She would be safe if she did not return to M’s place.
(d) She had never reported the assaults by “M” to the police. There was no evidence that the police would not take action if they were informed. It was not the case that the State was indifferent and failed to provide protection.
(e) According to some COI, the police in the Philippines was corrupt and ineffective. The Judicial system was inefficient with long delay. On the other hand, there was positive steps taken to improve training and efficiency of the police. The CHR [7]also provide training on human rights. The Supreme Court had been taking steps to expedite judicial processes. The Ombudsman office had collaborated with NGO to tackle human rights abuses and corruption cases. There were social welfare services to assist women in domestic violence cases. Legal services were provided to those victims. Domestic violence was an offence under the law. There was freedom of religion. The rights of Muslims were protected. There was reasonable State protection in the Philippines.
(f) The constitution of the Philippines provided for freedom of movement. The population was 107 million. The applicant had many years of working experience. She was educated up to tertiary level. It was not unduly harsh for her to relocate to large cities like Quezon. Given the large population, it would be difficult for “M” and her brothers to locate her.
13. By a decision dated 25/4/2017, the Director also dismissed her claim for protection based on BOR2 risk [8].
The Decision of the TCAB
14. The applicant attended a hearing on 7/9/2016. The TCAB dismissed the appeal on 23/2/2017.
15. The Board did not accept that the applicant could substantiate any real risk of harm based on BOR 3 risk, persecution risk or torture risk. The reasons were as follows:
(a) Persecution risk
(i) The applicant had sustained no serious injuries. There was no harm or violation of human rights to a minimum level of severity. She had lost contact with her family since 2013. Her complaints were mainly of domestic nature.
(ii) She indicated that she would not return to the area where “M” and her family lived.
(iii) The COI revealed that there was improvement in the Philippines. There was reasonable State protection. It was not unduly harsh for her to relocate given her work experience.
(iv) There was no well-founded fear of persecution.
(b) BOR 3
(i) ;There was no injury amounting to a minimum level of severity. She was not subject to any genuine and substantial risk of ill-treatment.
(ii) This ground failed.
(c) Torture risk
(i) There was no involvement of any state actor. She was not targeted by the government.
(ii) The assaults as asserted by the applicant did not amount to torture as defined by s.37 U of the Immigration Ordinance.
(iii) This ground failed.
16. The TCAB also dismissed her appeal in relation to BOR 2 ground on 9/8/2018. The TCAB repeated the findings of material facts in the earlier decision dated 23/2/2017. There was no evidence showing any risk of arbitrary deprivation of her life.
Judicial Review
17. The applicant filed the leave application on 11/10/2018. In her affirmation, she substantially repeated the factual background of her claim. She maintained that she would be killed by her brothers and “M”. She had not pointed out any error of the TCAB.
18. In my view, the reasons summarised in paragraph 15 above fully support the TCAB decision. I agree with those reasons. I am satisfied that there is no error of law nor is there any procedural irregularity. It is rational.
Conclusion
19. The Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 23rd day of November 2021.
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(Mike Mak)
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 Applicant
on 23 November 2021
Manuel Trinidad Aguilan
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 23 November 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1703/15/6/89/F118 &
BOR 563/17/5/63/F42
Director of Immigration
Putative Interested Party’s ref. no.:
ImmD QA T/C 89/15 &
RBCZ 9001145/17
(formerly RBCZ/3000023/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Including trafficking in dangerous drug, using an identity card of another person and overstaying.
[2] He was a British Passport holder of Pakistani origin in Hong Kong.
[3] This refers to the 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, Cap.383
[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[6] Decision of the Director dated 4/6/2015, §§13—17.
[7] Commission of Human Rights.
[8] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
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