MARTICIO MELCRIS ANDOY v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 106/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 106 OF 2017

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D E C I S I O N

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1.  The applicant claims that she had been frequently assaulted by her husband and that she would be harmed or killed by him if she were to return to the Philippines. She also has a child born out of wedlock and she feared that he would be killed by her husband and that she would be discriminated if she were to return to the Philippines.

2.  The Director of Immigration (“the Director”) dismissed the applicant’s non-refoulement claim.  The Torture Claims Appeal Board (“TCAB”) dismissed the applicant’s appeal against the Director’s Decision.  This is an application for leave to appeal against both decisions.

The applicant’s case

3.  The applicant’s mother could not pay a loan with interest and so the applicant had to marry the creditor, Mr Marticio Samuel Marquez (“SM”), in 2001, to settle the loan.  The applicant and SM lived in Cordon, Isabela.  They have 2 children born out of the marriage.  Later, the applicant had an affair with a married man in Hong Kong and she gave birth to their son in 2014 (“the Son”).

4.  Since 2002 the applicant had been allegedly assaulted by SM when he was drunk, after taking drugs, when he suspected the applicant of infidelity, or when the applicant refused to assist in his illicit drug business.  The assaults occurred about 4 times or more per month. 

5.  After giving birth to a son, the applicant stayed with her mother to avoid SM’s assault, but the mother could not protest against SM for fear of him.  The applicant only returned home when she knew that SM was not at home.

6.  The applicant moved to her sister’s place in Victoria in mid-2006 with her mother and her children.

7.  In December 2006, the applicant went to work in Singapore without the prior knowledge of SM.  The children went into the custody of SM.  She maintained contact with SM for the sake of the children. She stopped sending money to SM when she found that SM was neglecting the children.  SM started to harass her family and threatened to kill her when she returned.  At times he scolded her mother and brother and even pointed a gun at them on one occasion threatening to kill them when they refused to tell him the applicant’s whereabouts.  Her family suggested that she should not go back home for fear that SM would harm her.

8.  The family did not seek police assistance because they had no evidence that SM sent them death threats and the police station was too far away from their home village.  The turned to the village chief for help but he refused for lack of evidence.

9.  Between 2006 and December 2009, the applicant had worked in Singapore.  She had returned to the Philippines to stay with her sister without SM knowing.  She had not contacted SM or their children either.

Immigration history and the non-refoulement claim

10.  The applicant arrived in Hong Kong on 13 August 2010 to work as a domestic helper.  Since then her children have been staying with her mother.  Her employment contracts had been prematurely terminated twice, on 21 September 2010 and 16 January 2012.  She was permitted to stay as a visitor until 21 March 2012.  She overstayed and was arrested by the police on 16 May 2012.  She was convicted of overstaying and was given a suspended sentence.

11.  She raised her non-refoulement claim on 7 June 2012 relying on 3 grounds:

(i) risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

(ii) 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; and

(iii) risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

12.  The applicant learnt from her family that SM was still asking the family for her whereabouts.  SM had turned the matrimonial home into a meeting place for his illicit business.

13.  The applicant feared that if SM had found out about the Son, SM would be furious.  In addition, because of the culture back home, the applicant as a single mother with an illegitimate child would be treated with disrespect and discrimination.  Life would be difficult for her and the Son as the Son’s father had abandoned them.

14.  The applicant last contacted her mother after the screening interview in October 2015.  In the last telephone contact between the two, the mother told the applicant that SM was still looking for her.  He threatened to take the life of the applicant if the mother did not repay him. She was told that as SM knew about the Son, he would kill him if the applicant were to bring the Son back and the applicant was frightened.

15.  The Director of Immigration refused the applicant’s claim by a decision dated 10 November 2015.

TCAB’s Decision

16.  After an oral hearing, the Adjudicator found against the applicant on credibility as regards her account of experience in the Philippines and of her subjective fear of harm from SM.  The Adjudicator rejected all the additional information tending to improve on her claim.  In particular, the Adjudicator did not accept the allegation that SM has ever threatened to torture the applicant for the rest of her life.

17.  The Adjudicator also found that even if the alleged assaults were accepted, they did not either alone or together attain a level of severity warranting non-refoulement protection.  In fact, after moving out to stay with her sister, the applicant had not even met SM again, not to mention his having an opportunity of assaulting her or demanding money from her.  The applicant never consulted a doctor or reported to the police even though the assaults had no signs of improvement.  Her mother never sought to discuss matters with SM in a non-confrontational way.  The applicant did not see fit to seek protection outside the Philippines, allegedly for fear of affecting her employment.  She did not seek protection in Hong Kong until she has practically exhausted the opportunity to continue working here.  The delays and failures in seeking protection were not consistent with the level of fear she claimed to have.

18.  The Adjudicator found no evidence that SM had the intention to resume cohabitation with the applicant.  The past incidents were not premeditated and it was not shown that SM would escalate his level of harm even if they had a chance to meet one another.  It was only a bare assertion that having the Son would make SM furious.  The applicant’s family was not harmed even though he had pointed a gun at them on one occasion.  SM showed no intention to carry out his threats.  The likelihood of SM harming the applicant seriously when he met her in the Philippines was very low.

19.  The chances for the applicant and SM to meet were low.  It was not shown that SM had made attempts to locate the applicant. Her family was able to keep her whereabouts secret despite SM’s threats to them.

20.  The applicant alludes to fear that SM may have influence and power through his association with political figures and so he might be able to locate her. All that the applicant could say was that she had once seen SM talking to one political figure, the mayor, in a chance meeting. The Adjudicator found nothing to support the assertion that SM was the subordinate of any politicians, not to mention he could use their influence to locate the applicant.

21.  The applicant had lived outside her home village.  It was only reasonable to do the same on her return.

22.  The Son might present some difficulty but it was not insurmountable.  The mother and the sister might offer help as in the past.  The Adjudicator did not accept that SM would kill the Son.

23.  The Adjudicator also found state protection to exist.  The fact that the applicant has not attempted to seek protection could not be an assumption that protection was not available to her.  In fact, because state protection had shown appreciable deterrent effect on SM, he did not harm the family and stopped threatening them with a gun after the family sought help from the village chief.

24.  Accordingly, the Adjudicator dismissed the appeal.

Application for leave to apply for judicial review

25.  The intended grounds for judicial review against the Director's Decision and the TCAB’s Decision appeared only in a short affirmation of the applicant.  I summarize them as follows:

(a) Failure to conduct sufficient independent inquiry into the relevant country of origin (“COI”) conditions;

(b) Failure to consider the psychological and physical impact of the facts raised as part of the applicant’s claim including the injuries and abusive language she was subject to;

(c) Taking into account irrelevant considerations including the fact that the applicant did not seek medical treatment for her injuries;

(d) Failure to properly apply §2 of the UN Committee against Torture General Comment No.2 whereby satisfaction of a national state’s obligation to conduct sufficient due diligence requires that reforms and means of relief introduced must be “effective” in any event, cf the Director’s Decision and TCAB’s Decision which focussed on whether such reliefs showed merely signs of positive improvement; and

(e) (against the TCAB’s Decision only) the adjudicator failed to “materialize” that if the applicant were to return to her country, she would be safe with the Son.  The Adjudicator mentioned that the applicant did not give any specified date about the assault incidents. Actually she was mentally stressed and forgot many things so she could not assert exact days.

Legal principles

26.  In an application for judicial review, the court would examine whether the Adjudicator had made any error of law, or handled the matter or adopted procedures without compliance with high standard of fairness as required by the law and as explained by Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.

27.  The court will also consider whether the application of the enhanced Wednesbury test, by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision was satisfied: AM v Director of Immigration & anor [2014] 1 HKC 416, §34; Prabakar, §45.

Leave to apply for judicial review against the Director’s Decision

28.  The application for leave was made out of time.  In any case, the applicant had resorted to the alternative remedy of appealing to the TCAB.  The route of judicial review of the Director’s Decision is not open to her.

Leave to apply for judicial review against TCAB’s Decision

29.  The Adjudicator has, correctly in my view, set out the legal principles for the 3 heads of the non-refoulement claim.

30.  It was quite apparent from hearing the applicant’s oral submission at this hearing that she did not really understand the grounds for seeking leave to apply for judicial review as they were prepared by someone on her behalf.  It would be fair to say that she just would not accept that she had a “weak case” (her own words).  All that she could say that she would not leave the Son behind.  She could not particularize further.

Ground (a): Failure to conduct sufficient independent inquiry into the relevant COI conditions

31.  This ground has no merits.  The applicant simply failed to establish her case on the facts.  There was no torture established or involvement of the state to warrant further enquiry into the COI conditions.  Ground (a) has no merits.

Ground (b): Failure to consider the psychological and physical impact of the facts raised as part of the applicant’s claim including the injuries and abusive language she was subject to

32.  The Adjudicator has rejected the applicant’s version of facts after careful analyses of the evidence on alleged assaults.  He had gone on to say that even if the assaults had occurred, the severity of the harm fell below the standard required to found a torture risk claim.  There was simply no basis for the Adjudicator to consider the impact of harm.  Ground (b) has no merits.

Ground (c): Taking into account irrelevant considerations including the fact that the applicant did not seek medical treatment for her injuries

33.  The failure to seek medical treatment was a factor to assist the Adjudicator in deciding if the assaults had occurred, their level of severity and the applicant’s credibility.  It was plainly relevant to the issues and was fairly investigated by the Adjudicator.  Ground (c) is unarguable.

Ground (d): Failure to properly apply §2 of the UN Committee against Torture General Comment No.2

34.  The Adjudicator has correctly directed himself on the law in paragraph 22 of his decision.  It was also entirely appropriate for him to consider that the applicant/her family had only turned to the village chief instead of seeking police assistance.  Ground (d) is unarguable.

Ground (e): against the TCAB’s Decision

35.  This is a challenge to the findings of acts of the Adjudicator, but the applicant was unable to point to where the Adjudicator had gone wrong in principle or in procedure.  This ground has no merits.

Conclusion

36.  None of the grounds were reasonably arguable to meet the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, §§14-17.  Accordingly, the application for leave to apply for judicial review is refused.