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HCAL 2078/2018
[2021] HKCFI 520
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2078 OF 2018
BETWEEN
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Galletis Dominica Dosca |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
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 Applicant:
1. The applicant last came to Hong Kong on 11/6/2014 as a visitor [1]. She overstayed until arrested by the police on 20/1/2015. She then raised her non-refoulement claim on 22/1/2015. According to the immigration record, she had visited Hong Kong 11 times since July 2007. She stayed around 2 to 4 weeks each time[2].
2. The applicant was born on 6/8/1978 in Baguio City, Philippines. She received education up to university level. She had worked as a purchasing officer (2005-2008). She operated her own garment business from 2008-2014. Her family lived in the Philippines.
3. She cohabited with her ex-partner who was from a wealthy family. They were not married. They had 2 daughters born in 2001 and 2004. Her ex-partner’s family had connection with an influential politician.
Background
4. Her ex-partner was a drug dealer. Since 2001, he assaulted her whenever there was big arguments between them. She had not reported the assaults to the police or thought of leaving him.
5. In June 2004, she was again attacked by her ex-partner with a chopper. This ended up in her hospitalization for a few days. She was given antibiotics and bandaging. After discharge, she left him and stayed at her parents’ house with her daughters. She reported the attack to the police. This led to the arrest and detention of her ex-partner for about a month. She did not testify against him as she had to travel a lot for business. She opened her own garment shop in 2008. When she was away in business trip, her ex-partner visited her parents and threatened them. During those visits, he was mostly drunk and under the influence of drug[3]. However, her parents did not disclose her whereabouts.
6. In 2010, she went to Korea and remained there for a year. She however returned to the Philippines as she thought everything would be fine. She opened her shop again. Her ex-partner visited the shop occasionally. He verbally abused her and threatened to kill her. She ignored him.
7. One afternoon in 2014, her ex-partner visited her parents’ house and had a fight with her brother. Her brother had minor bruises. Her brother did not report to the police. Both of them were believed to be drunk according to her parents.
8. On the advice of her parents, she left the Philippines for Hong Kong in June 2014. She did not file a non-refoulement claim immediately after arrival. She only thought of sightseeing in Hong Kong then.
9. While she overstayed in Hong Kong, her ex-partner went to her parents and had a row with her father. Her ex-partner shot dead her father. Her family did not report to the police nor was her father taken to a hospital. They did not want to aggravate the matter. She thought the police had investigated but did not continue.
10. Since then, her partner disappeared. However, she was still afraid that he might locate her and harm her if she returned to the Philippines.
11. She did not trust the police as they were corrupt. She did not think the government would protect her. She could not live in other parts of the Philippines as her ex-partner could locate her. She would be constantly in fear even if she relocated to other cities.
12. The Director of Immigration rejected her claim on 25/1/2018. The TCAB rejected her appeal on 27/9/2018.
The decision of the Director
13. The Director found that there was low risk of harm if the applicant returned to the Philippines for the following reasons:[4]
a. Despite the persistent assaults by her ex-partner, the applicant could settle herself at her parents’ house with her daughters. She could secure a job and even started her business. She travelled abroad on business trips frequently. There was no sign of mental stress. In those years, there was no injury amounting to ‘a minimum level of severity’.
b. The applicant could take up a job in Quezon City for a few years. She then returned to her home town and operated a garment shop. She travelled to Korea and Hong Kong during that period. She never raised any non-refoulement claim then.
c. According to her, the ex-partner was mostly under the influence of alcohol and drug during those incidents. He seemed to have no intention to kill her. Similarly, the row with her brother and father was believed to be under the influence of alcohol.
d. The dispute between her and her ex-partner was personal and private. There was no official involvement. She was not targeted by the State. She chose not to follow up her case against her husband with the police.
e. According to some COI, the police in the Philippines was corrupt and ineffective. The criminal justice system was overburdened and slow. There was abuse of power. The authorities were insensitive to domestic violence. On the other hand, there was positive steps taken to improve the effectiveness of the police. The government had taken steps to enhance training on human rights to police officers. Ombudsman office had been tackling corruption cases. With the assistance of NGO, police officers were more equipped to deal with domestic violence. More female officers were recruited for these purposes. There was reasonable State protection in the Philippines according to the COI.
f. The applicant had sufficient work experience. She was educated up to university level. The law allowed relocation. It was far-fetched to insist that her ex-partner could locate her in a large country with huge population. It was not unduly harsh for her to relocate to Quezon City or Cebu City.
14. There was no ill-treatment up to ‘a minimum level of severity’ as required under BOR 3. There was no evidence to establish arbitrary deprivation of life. Both BOR 3 and BOR 2 claims failed.
15. The dispute was private in nature. The applicant was not within the categories of persons as defined in the Refugee Convention. There was no State involvement. The fear was not well-founded. Persecution claim failed.
16. There was no severe pain or suffering as defined under s. 37U (1) of the Immigration Ordinance. There was no public official involved nor was there any conduct under their instigation or acquiescence. The applicant was not targeted by the government and there was reasonable State protection. There were reasonable options for relocation. Torture claim failed.
The decision of TCAB
17. The applicant attended a hearing on 19/6/2018. She was assisted by a Tagalog interpreter. The adjudicator had considered the applicant’s evidence, the NCF, the questionnaires and the record of interview[5]. The applicant gave evidence and answered questions. There was no record of any complaint concerning the procedures at the TCAB.
18. The adjudicator dismissed her appeal on 27/9/2018. The adjudicator concluded that there was no real risk that the applicant would suffer harm if she returned to the Philippines. The reasons are as follows:
a. In relation to the death of the applicant’s father, the adjudicator did not accept the applicant’s claim that her family could take revenge by slaughtering an animal. The adjudicator did not accept that it was not investigated because of political connections of the ex-partner’s family[6].
b. The applicant had been travelling to Hong Kong on many occasions since 2007. These took place at a time when she was persistently assaulted and threatened by the ex-partner. Even when her father was murdered in July 2014, she did not immediately seek non-refoulement protection in Hong Kong but delayed until January 2015 after she was arrested. This conduct was indicative that she was not actually in fear[7].
c. During the hearing, the applicant told the TCAB that the ex-partner was a member of a criminal gang. The applicant’s evidence was vague and unpersuasive. She had not mentioned this with the Director earlier. The adjudicator did not accept her explanation for not doing so[8].
d. The adjudicator found that the there was no assault by the ex-partner since 2004. In fact, there was not much contact between them for about 10 years. The domestic violence occurred only when they cohabited. There was no consent or acquiescence by any public authorities. There was no substantial ground for believing that she would be in danger of torture or ill-treatment[9].
e. Given the evidence, there was no ill-treatment amounting to ‘a minimum level of severity’. BOR 3 claim failed. For similar reasons, BOR 2 claim also failed[10].
f. The adjudicator did not accept that the applicant was credible in several aspects of her evidence as stated above. She was not satisfied that the applicant had a well-founded fear of persecution based on Convention reasons. The claim based on persecution risk failed[11].
Judicial review
19. The applicant filed an application for leave for judicial review on 2/10/2018. In her affidavit in support, she did not specify any error of the TCAB decision. However, she sent a letter to this court on 23/10/2020. She alleged that there were procedural errors in the TCAB. There was failure to meet the greater care and duty owed to unrepresented applicants. She could not understand the oral hearing.
20. Upon her request, this court fixed a hearing on 10/12/2020. She did not turn up. The notice of hearing was sent to her most updated address. There was no return of mail. This court proceeded to deal with the leave application on paper.
21. Although the applicant alleged procedural unfairness, she did not point out any specific aspects. In the oral hearing before the TCAB, she was assisted by an interpreter. She gave evidence and answered questions in detail. There was no record that she could not follow the proceedings. There was no complaint whatsoever in the decision of the TCAB.
22. A claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings[12]. The applicant had legal assistance in presenting her case to the Director. The decision of the Director must have been translated to her by the DLS. She basically repeated her story before the TCAB. The adjudicator was fully aware of the relevant documents. Given the circumstances, I do not find any unfairness.
23. In my view, the evidence as summarised above fully support the TCAB decision. The factual basis of her claim was not credible especially in relation to the murder of her father and the delay of her application for the non-refoulement claim. I agree with the adjudicator. I am satisfied that there was no error of law nor was there any procedural irregularity. The decision of the TCAB is rational.
Conclusion
24. For the reasons above, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 3rd day of March 2021
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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 Applicant
on 3 March 2021
Galletis Dominica Dosca
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 3 March 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10190/18/2/74/F550
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3425/17
(Formerly RBCZ 10204/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] She was allowed to stay until 25/6/2014.
[2] The decision of the Director dated 25/1/2018, §9.
[3] She learned from her parents.
[4] The decision of the Director dated 25/1/2018, §§12-20.
[5] As listed in §8 of the decision of the TCAB dated 27/9/2018.
[6] The decision of the TCAB dated 27/9/2018, §§42, 55 & 60.
[7] The decision of the TCAB dated 27/9/2018, §§56—57.
[8] The decision of the TCAB dated 27/9/2018, §§38 & 58.
[9] The decision of the TCAB dated 27/9/2018, §§63—68.
[10] The decision of the TCAB dated 27/9/2018, §§69—74.
[11] The decision of the TCAB dated 27/9/2018, §§75—78.
[12] See Zafar Muazam [2018] HKCA 176, at paragraph 22.
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