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HCAL 649/2019
[2021] HKCFI 2320
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 649 OF 2019
BETWEEN
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Manligas Wilma Motin |
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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and |
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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:
1. Application for leave to apply for Judicial Review be reinstated.
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant last came to Hong Kong on 30/4/2017 as a domestic helper [1]. Her contract was terminated early on 16/11/2017. She overstayed and surrendered to the Immigration Department on 19/12/2017. She then raised her non-refoulement claim in this case. The Director received her written submission on 25/1/2018.
2. Her claim was dismissed by the Director on 20/9/2018. Her appeal was rejected by the TCAB on 1/3/2019. She filed the leave application for judicial review on 7/3/2019.
3. On 10/2/2021, she applied to withdraw the leave application. The reason being that her problems in the Philippines were solved. She would like to return home as soon as possible as her mother was sick.[2] This court allowed her to withdraw the leave application on 26/2/2021.
4. On 8/4/2021, she applied to reinstate her leave application. She submitted that her problems in the Philippines remained. She could not return.
5. This court held a hearing on her request on 8/6/2021. She indicated that she had mistaken about the situation. Her relatives told her on the phone that the creditor still pursued the debt. It was her fault not to confirm with her relatives first before applying to withdraw.
6. I have grave doubt about this explanation.[3] Nevertheless, I allowed her application for reinstatement and proceeded to consider the leave application as follows.
Background
7. The applicant was born on 15/11/1978 in Calatrava Romblon, Philippines. She received education for 8 years. She had worked as a saleslady in the Philippines (1999-2010) and a domestic helper in Hong Kong (2013-2017). She was single. Her family lived in the Philippines.
8. In early 2014, her brother informed her that her father had died of tuberculosis and her mother had died during a flood.
9. In 2015, when she returned to the Philippines on holiday, she decided to open a cosmetics shop with her brother who was a construction worker. It was their dream. She and her brother borrowed about 3.5 million pesos from a loan shark introduced by a friend. The monthly interest was 10%. The loan should be repaid within 5 years.
10. All went well until 5/1/2017, her brother informed her that someone set fire on her shop. All goods were destroyed. She strongly suspected that it was done by the neighbors who were jealous.
11. On 25/1/2017, her brother informed her that the loan shark demanded for repayment within 2 months. The loan shark threatened to kill her brother if he failed to repay. On 21/2/2017, the loan shark threatened her brother again.
12. In March 2017, she returned to the Philippines after her contract was terminated early. When she arrived home, she found that her brother’s leg was injured. His wife told her that the injuries were caused by the loan shark and his men. Her brother went to a hospital for treatment. However, she did not know the nature of the injuries, the kind of treatment and the time needed for recovery.
13. The next day, she confronted the loan shark in his office. The loan shark threatened to rape and kill her. She was frightened. The loan shark allowed her 2 weeks to repay. She reported to the police on 7/4/2017. However, the police told her to settle with the loan shark as it was a personal matter.
14. In mid-April 2017, the loan shark and his men came to her house. The loan shark molested her and assaulted her family. Before leaving, the loan shark threatened to kill them. She sustained bruises all over her body. She was bandaged and given painkillers by a doctor. She recovered in 3 days. She reported to the police the next day, the police agreed to investigate.
15. After this incident, her brother fled with his family. She did not know their whereabouts. She hid at the agency in Manila until she got a new contract to work in Hong Kong. She left the Philippines on 30/4/2017.
16. In November 2017, her contract was terminated early. She overstayed in Hong Kong. She later learned about the non-refoulement protection scheme. She surrendered to the Immigration Department. She then lodged a claim.
17. She last contacted her niece in May 2018. She was told that her brother was attacked by the loan shark and paralyzed. However, she did not have any detail. The loan shark still looked for her. Her life would be in danger. She received no update from the police about the fire and the assaults.
The decision of the Director
18. The Director found that there was low risk of harm if the applicant returned to the Philippines for the following reasons:
a. In the several incidents when the loan shark and his men threatened and assaulted her brother, she was not present. In the other incidents in which she was threatened and assaulted, she only sustained bruises. As a whole, there was no injury amounting to ‘a minimum level of severity’.
b. The applicant was molested during the incident in mid-April 2017. While the loan shark had a gun, he and his men only assaulted her family with bare hands. They kept on threatening her family but there was no intention to kill. The conduct of the loan shark was to put pressure on her to repay, there was no imminent risk to her life as she claimed.
c. According to her niece, her brother was paralyzed as a result of attacks by the loan shark. However, there was no detail. The applicant did not have personal knowledge. It could not be verified.
d. She could hide in the agency in Manila before leaving for Hong Kong by the end of April 2017. The loan shark was unable to locate her. This indicated that the loan shark was not that powerful as she asserted. In fact, there was no evidence that the loan shark would deploy resources to locate her. Internal relocation was apparently viable.
e. The dispute was personal. There was no involvement of public officer. She was not targeted by the State. She chose not to follow up her report against the loan shark with other authorities. There was no evidence that the Philippines government was unable or unwilling to discharge their duties or would tolerate unlawful conducts.
f. According to the COI, the police in the Philippines was corrupt and disregarded due process. The judiciary was also corrupt and slow. On the other hand, there were positive steps taken to improve the effectiveness of the police. The government had taken steps to enhance training of police officers on human rights. The Ombudsman Office had been tackling corruption cases. There were more investigations and prosecutions of public officials. Newspaper reports revealed that actions were taken against loan shark syndicates. There was reasonable State protection in the Philippines according to the COI.
g. The applicant had sufficient work experience. She was educated up to high school level. The law allowed relocation. There was no basis that the loan shark could locate her in such a large country (300,000 km2) with a huge population (104 million). It was not unduly harsh for her to relocate to Quezon City or Caloocan City.
19. The Director dismissed her claim on all grounds.
The decision of TCAB
20. The applicant attended a hearing on 31/12/2018. The adjudicator dismissed her appeal on 1/3/2019. The adjudicator concluded that there was no reliable evidence to establish a real risk that the applicant would be harmed if she returned to the Philippines. The reasons were as follows:
a. The applicant was inconsistent in several aspects of her evidence. These were set out in detail in the decision of the TCAB. The adjudicator indicated that they undermined her credibility. [4]
b. Her evidence revealed that the loan shark and his men only used bare hands in the assaults. Had the loan shark intended to kill or caused more serious injuries, there were plenty of chances. They had never escalated their threats as asserted. All these indicated that the loan shark just wanted to put pressure on her and her brother to repay the loan.
c. The applicant was safe while hiding in the agency before leaving the Philippines again in late April 2017. There was no evidence that the loan shark tried to locate her. It demonstrated that the loan shark had no intention to hunt her down. In fact, there was no evidence that the loan shark was still trying to locate her.
d. The applicant did not suffer any severe physical or mental injury. She could recover in three days after the incident in mid-April 2017. She could even find a new contract to work in Hong Kong shortly afterwards.
e. While the applicant asserted in the NCF that her brother became paralyzed due to the attacks by the loan shark, it was pure hearsay without any supporting evidence. The adjudicator put no weight on this. The applicant even asserted to the TCAB that her brother was shot dead by the loan shark. Again, it was her assertion without any credible corroboration whatsoever.
f. There was no evidence that any government official was involved. Nor was any evidence that the police had colluded with the loan shark. The applicant was not targeted by the State. She was able to leave the Philippines through proper channels.
g. The assaults and ill-treatment asserted by the applicant were not within the definition of ‘torture’ under s.37U of the Immigration Ordinance. There was no well-founded fear arising from any grounds of persecution under the Refugee Convention.
h. Based on the above, the adjudicator dismissed the appeal.
Judicial review
21. The applicant filed an application for leave for judicial review on 7/3/2019. In the Form 86 and her affirmation, she alleged that there was no hearing before the TCAB. She was not even invited to file written submissions. The appeal bundle was served late. She alleged that the TCAB should not take into account news reports which were not authentic and up-to-date.
22. Upon her request, this court fixed a hearing on 8/6/2021. In the hearing, she agreed that it was her fault not to confirm with her relatives first before applying to withdraw. She maintained that her life was in danger. In relation to her claim, there was nothing to update.
23. Although the applicant alleged that the appeal bundle was served late, she actually confirmed during the TCAB hearing that she did not need further time to consider the bundle.[5] She gave evidence and answered questions in detail. There was no record that she could not follow the proceedings. There was no complaint whatsoever recorded in the decision of the TCAB.[6]
24. The applicant alleged in her affirmation that there was no hearing before the TCAB. This was obviously untrue. It could not be an oversight. It demonstrated that she was deliberately misleading in the affirmation.
25. As to the COI, the adjudicator had specifically considered the source and veracity of them in the decision.[7] The news reports were from CNN, ABS-CBN and the Independent. They are well established news agencies. In any event, the news reports were just illustrations of the actions taken by the government. The more important aspect is the findings of the COI by state agencies which are authentic and accurate.
26. In my view, the analysis of the TCAB was accurate. There are material inconsistencies in her evidence which substantially affected her credibility. I agree with the findings of the adjudicator. I am satisfied that there is no error of law. There is no procedural irregularity. The decision of the TCAB is rational.
Conclusion
27. The intended judicial review is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 10th day of August 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 10 August 2021
Manligas Wilma Motin
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 10 August 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13679/18/10/21/F886
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3281/18
(Formerly RBCZ 10320/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] She first came to Hong Kong in May 2013. She was dismissed early during her second contract on 9/3/2017. She left Hong Kong on 22/3/2017. She returned on 30/4/2017 with a new contract.
[2] This was inconsistent with what she told the Director that her mother had died in March 2014 during a flood. See Decision of the Director dated 20/9/2018, §§6.5.
[3] See footnote 2 above.
[4] Decision of the TCAB dated 1/3/2019, §§31-38.
[5] Decision of the TCAB dated 1/3/2019, §8.
[6] Decision of the TCAB dated 1/3/2019, §§31-38.
[7] Decision of the TCAB dated 1/3/2019, §§44-55.
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