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HCAL 3020/2018
[2021] HKCFI 2868
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3020 OF 2018
BETWEEN
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Bautista Judy Villacorta |
Applicant |
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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 was a domestic helper in Hong Kong since 16/7/2012. Her contract was terminated early on 10/7/2015. She was arrested by the police for overstaying on 13/11/2015.[1] She raised the present non-refoulement claim on 2/1/2016.
Background
2. The applicant was born on 2/8/1981, in Dagupan City, Philippines. She received education up to high school level. She had various working experience from 2003—2012. She worked as a domestic helper in Hong Kong since July 2012 until July 2015. She had 2 children with her boyfriend.
3. In around 2004, she co-habited with her boyfriend in Quezon City. He sold meat at Blumentritt market in Caloocan City. He had a lot of friends and helped out in the election campaigns of the local village/district. He was a gambler and drunkard. He frequently abused her. She sustained bruises which recovered in a few days. He had once pointed a pistol to her. She did not report to the police. The head of the village/district only told him to stop the abuse.
4. In late 2005, she moved to her friend at Marikina to avoid his abuse. She was safe there. She gave birth to her 1st child. She subsequently returned to her boyfriend as she had nowhere to stay. The abuse resumed after a few months. She worked as a domestic helper for her aunt in the Philippines from 2006—2008. After that, she assisted her boyfriend’s meat shop. The domestic violence continued.
5. In June 2012, she successfully arranged work in Hong Kong. Before she left for Hong Kong, her boyfriend introduced her to borrow from Mrs. Guzman. She borrowed 82,000 pesos. It was meant to support her boyfriend and children while she was away. There was no written agreement. The loan had to be repaid in 6 months. The daily interest was 850 pesos.
6. In Hong Kong, she remitted around HKD $2500 to her boyfriend each month. In August 2015, she received 2 text messages from Mrs. Guzman threatening to kill her family if she did not settle the loan. It transpired that her boyfriend had not repaid the loan despite she had sent money back to him. She lost contact with her boyfriend and children since then.
7. As her contract was terminated in July 2015, she could not repay the loan. She was afraid that Mrs. Guzman would kill her if she returned to the Philippines.
8. While overstaying in Hong Kong, she heard from various friends that her boyfriend had an affair with another woman. He had been gambling heavily. He had left Quezon City with her 2 children and the woman.
9. About May 2016, her friend told her that Mrs. Guzman was still looking for her. She did not trust the police as they were corrupt. Mrs. Guzman was connected with the police. She could not live in other parts of the Philippines as she had no means for living. She got no relatives elsewhere. She feared that Mrs. Guzman would be able to locate her.
The decision of the Director
10. The Director found that there was low risk of harm if the applicant returned to the Philippines for the following reasons:[2]
a. The applicant had been repeatedly assaulted by her boyfriend. She could recover after a few days. There was no injury which amounted to ‘a minimum level of severity’. Since she left the Philippines in 2012, there was no more encounter with him. He had another relationship and had fled to other places.
b. Mrs. Guzman had never harmed or injured her. There were only text messages which threatened to kill. Mrs. Guzman had done nothing to harass her. Although Mrs. Guzman had allegedly assaulted her boyfriend, the main purpose was to get the repayment. It was unlikely that she would carry out the death threat.
c. Her problems with her boyfriend was domestic in nature. The debt owed to Mrs. Guzman was also a private matter. There was no public official involved. She had made no formal report to the police about these events.
d. According to the COI, the police in the Philippines was corrupt and ineffective. Domestic violence was a serious problem. The judicial process was slow. There was torture and other abuses. However, there were positive steps taken to improve the effectiveness of the police. Training on human rights and international humanitarian law to police officers were incorporated in training courses. Ombudsman office was tasked to tackle complaints against public officials. Other complaint channels were enhanced to enable timely investigations of complaints. Police officers were more equipped to deal with domestic violence. The Women and Children Protection Desks were designated for these purposes. There was reasonable State protection in the Philippines. There was no evidence that the government failed to discharge their duties or tolerate criminal conducts.
e. The applicant had sufficient work experience. She was educated up to high school level. The law allowed relocation. It was difficult for her boyfriend or Mrs. Guzman to locate her in a large country with a huge population. It was not unduly harsh for her to relocate to Davao City or Manila.
11. The Director rejected her claim on all grounds on 15/8/2016 and 17/8/2017 [3].
The decision of TCAB
12. The applicant attended a hearing on 12/10/2018. She gave evidence and answered questions.
13. The adjudicator dismissed her appeal on 13/12/2018. He opined that her evidence did not support a real risk of harm which warrant non-refoulement protection. The reasons were as follows: [4]
a. The applicant was foolish to raise the loan. It was a big sum. It was impossible for her to repay given her limited income in Hong Kong. Worst still, she entrusted the loan to her boyfriend who was a gambler and a drunkard.
b. She told the adjudicator that she signed an agreement but had no copy of it. This was inconsistent with the NCF which she said there was no written agreement and no collateral security.
c. Although her sister told her recently that Mrs. Guzman was still looking for her and her boyfriend, the source of this information was unknown.
d. Mrs. Guzman had made no attempt to kill or harm her family and her children. Some friends told her that her boyfriend had left Quezon City. There was no information that her boyfriend was seriously injured. He was not even tracked down. The adjudicator opined that the text message was only designed to intimidate her.
e. The evidence did not support the conclusion that Mrs. Guzman was so influential that the police would not be able to protect the applicant.
f. She told the TCAB that she did not want to live elsewhere in the Philippines as she wanted to locate her children. It was not that she could not relocate. In fact, there was no evidence that Mrs. Guzman had the resources to track her down anywhere in the Philippines.
g. There was no torture of severe pain or suffering. There was no acquiescence of any officer in public capacity. There was no genuine threat for her life or CIDTP. There was no evidence of persecution under Convention reasons.
h. The adjudicator dismissed the appeal and confirmed the decision of the Director on 13/12/2018.
Judicial review
14. The applicant filed an application for leave for judicial review on 31/12/2018. In her affidavit in support, she did not specify any error of the TCAB decision. She repeated that her life was in danger.
15. In my view, the evidence above justified the conclusion of the adjudicator. The factual basis of her claim did not warrant non-refoulement protection. I agree with the adjudicator.
16. I am satisfied that there was no error of law nor was there any procedural irregularity. The decision of the TCAB is rational.
Conclusion
17. For the reasons above, the applicant’s application is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 28th day of September, 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 28 September 2021
Bautista Judy Villacorta
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 28 September 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4560/16/8/279/F266
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 284/16 &
RBCZ 9002678/17
(Formerly RBCZ 26/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] She was convicted of ‘possession of firearms’ and ‘overstaying’. She was sentence to imprisonment of 2 months and 7 days on 29/3/2016.
[2] Decision of the Director dated 15/8/2016, §§17—32.
[3] The former concerned BOR 3, persecution risk and torture risk. The latter concerned BOR 2.
[4] Decision of the TCAB dated 13/12/2018, §§52—62.
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