CAYAO KRISTYL MEI TUPAS v. DIRECTOR OF IMMIGRATION

HCAL 1321/2019 & HCAL 3176/2019

[2021] HKCFI 3672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1321 of 2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 3176 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge P. Li:

HCAL1321/2019 (made on 4 October 2021):

The application for leave to apply for Judicial Review be dismissed.

HCAL3176/2019:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The applicant had worked as a domestic helper in Hong Kong since 1/7/2009. She last came to Hong Kong on 11/8/2018.  Her contract was terminated prematurely on 2/3/2019.  She overstayed until 18/3/2019 and surrendered to the Immigration Department.  She raised the non-refoulement claim in this case on 16/4/2019 and 2/5/2019.

Background

2.  The applicant was born in Bacolod City, Province Negros Occidental, the Philippines on 3/5/1986.  She and her family moved to Village Asia, Province Negros Occidental.  She had education for 14 years to university level.  She was single.  She had worked as a domestic helper in Hong Kong from 2009 to 2019. She had never joined any organization or groups in the Philippines.

3.  The applicant claimed that if she returned to the Philippines, she would be harmed or killed by an unknown man (“the attacker”) who attempted to rape her in 2009.

4.  In the afternoon on 10/1/2009, her mother told the applicant to go to the school to take some books.  Her mother was a teacher there.  She was attacked by the attacker outside a classroom.  The attacker threatened her with a knife and dragged her to the school field.  He attempted to rape her.  She screamed and fought back.  The attacker struck her with a piece of stone.  A passer-by intervened.  The attacker left.  She had treatment at the nearby medical center for the wound on her head and the bruises over her body.  She was given dressing and painkillers.  She recovered in a month.

5.  She later found out that the attacker was a friend of the village head’s son.  The attacker was powerful and had extensive network in the Philippines [1]. She did not know the attacker.  Her parents only contacted a police officer in their village privately.  That officer told her parents that the attacker was very powerful and the police could not do anything.  That officer did not refer the case to any police station.  Her parents did not make formal report either.

6.  Later, she decided to work in Hong Kong for her safety.  The agent arranged her to stay in the training center in Manila for 6 months.  She left for Hong Kong by air on 1/7/2009 without any problem.  She returned to the Philippines for about 2 weeks in July 2011 to visit his father who was sick.  She stayed safely at her grandmother’s place at Hinigaran which was far away from her home village. 

7.  She returned to the Philippines in July 2018 again as her father passed away then.  She went back to her home village for 2 days.  Her neighbors in the home village told her that the attacker threatened to kill her if he met her.  She heard from the neighbors that the attacker had joined the NPA.[2] The NPA was powerful in the Philippines.  She was safe in this period.

8.  In Hong Kong, she maintained contact with her mother who told her it was not safe to return.  However, her family had never met the attacker.  She thought the police was corrupt and would not help.  She thought the attacker would be able to locate her in the Philippines.  She had no friends in other cities.

The Decision of the Director

9.  The Director of Immigration dismissed her claims on 12/7/2019.  The Director found that there was no real risk of harm to the applicant.  The reasons were as follows:

(a)  She was treated after the attempted rape.  She had an open wound at her head and some bruises.  It took her about a month to recover.  She only needed bandaging and painkillers for treatment.  The injuries did not attain a minimum level of severity.

(b)  She returned to the Philippines in July 2011 and July 2018.  She had no trouble from the attacker during these 2 periods. 

(c)  There was no evidence that any government official was involved in this attack.  Nor was there any evidence that the village head and his son were party to the attack.

(d)  It was pure hearsay that the attacker had joined the NPA.  There was no evidence that the attacker could mobilise the NPA to involve themselves in this matter.  It was her speculation that the attacker could locate her anywhere in the Philippines.

(e)  The applicant’s family remained in the home village safely.  The attacker had never troubled them.  They had chosen not to report to the police.  There was no indication that the police would not assist if a report was made.

(f)  According to some COI, the police was corrupt and ineffective.  Human rights abuses were common.  The Judicial system was inefficient with long delay.  Judges were also corrupt.  On the other hand, there was positive steps taken to improve training and efficiency of the police. The CHR [3]also provide training to the police on human rights and gender sensitive violent crimes.  The Supreme Court had been taking steps to expedite judicial processes. The Ombudsman office had worked with NGO to tackle human rights abuses and corruption cases involving public officials.  There were social welfare services to assist women victims in violent crimes.  There were news reports about actions taken against officers, NPA members and politicians on corruption and abuse of power. There was reasonable State protection in the Philippines.

(g)  The constitution of the Philippines provided for freedom of movement.  The population was 105 million.  Given the large population, it would be difficult for the attacker to locate her.  The applicant had many years of working experience.  She was educated up to university level.  It was not unduly harsh for her to relocate to cities like Cebu and Davao. 

The Decision of the TCAB

10.  The applicant attended a hearing on 26/9/2019.  The TCAB dismissed the appeal on 17/10/2019.  The adjudicator found that the applicant was unreliable.  She had fabricated the core assertion of her claim. The adjudicator pointed out the following reasons:

(a)   She initially asserted in the NCF that when she returned to her home village in 2018 to attend her father’s funeral, her neighbours told her about the threat from the attacker.  She later corrected her evidence in the interview with the Director.  She asserted that she stayed in her grandmother’s place in Hinigaran which was far away from the home village.  If she was to attend the funeral of his father, it was unreasonable for her to stay away from her home village.  The neighbours could not have informed her about the threat.

(b)   The attacker was a member of the NPA and also derived his power from the connection with the son of the village head.  It was pointed out to her that the NPA was anti-establishment while the village head was pro-establishment.  She indicated that she did not know this.

(c)   The applicant’s family had not reported the attacker to any authorities.  The applicant had done nothing to irritate the attacker.  There was no reason that the attacker would maintain a lasting feeling of enmity against the applicant.

(d)   The applicant had delayed her application for non-refoulement protection until 2019.  There was no explanation for the delay.

(e)   There was no involvement of any officials.  There was no consistent pattern of gross or mass violation of human rights in the Philippines.

(f)   The applicant had not sustained severe physical and mental sufferings.

Judicial Review

11.  The applicant filed two leave applications on 16/5/2019 (HCAL 1321/2019) and 25/10/2019 (HCAL 3176/2019) respectively. 

12.  HCAL 1321/2019 was against the decision of the Director dated 26/4/2019. In that decision, the Director refused to process her claim which did not fall within any of the applicable grounds of non-refoulement protection.  Subsequently, the applicant made further written significations on 16/4/2019 and 2/5/2019.  The Director accepted the application which was the subject matter of HCAL 3176/2019. In my view, HCAL 1321/2019 served no practical purpose, I therefore refused leave on 4/10/2021 during the hearing before this court. 

13.  As for HCAL 3176/2019, the applicant attended a hearing before this court on 4/10/2021.  The applicant indicated that she wanted to stay in Hong Kong.  There was no further update of her claim.  She had no complaint against the TCAB and the Director.

14.  In her affirmation dated 23/10/2019, she pointed out that the hearing bundle was served on her 6 days before the TCAB hearing.  She was unable to understand the documents as they were in English.  She could not find any language assistance.  However, she had answered questions honestly but was found not credible.  She also complained that the news reports relied on by the TCAB were not from reliable sources.

15.  The important documents in the hearing bundle were the Director’s decision, the record of interview before the Director and the NCF.  The latter two documents were made with the assistance of an interpreter.  The Director’s decision must have been explained to her by an interpreter through the DLS.  The applicant should have no difficulty understanding all of them.  Her form 86 and affirmation were in typewritten English.  This indicates that she was able to find language assistance. 

16.  During the hearing before this court, the applicant had no complaint against the TCAB.  Her assertion that she did not understand the proceedings in the TCAB is unreliable.

17.  The adjudicator found the applicant unreliable and rejected her factual basis.  The adjudicator did not rely on any news reports.

18.  In my view, the reasons summarised in paragraph 10 above fully support the TCAB decision.  The factual basis of the applicant’s claim is not logical and is unreliable.  I agree with those reasons.  There is no error of law.  There is no procedural irregularity.  The TCAB decision is rational.

Conclusion

19.  The Applicant’s application is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review in HCAL 3176/2019.

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

Form CALL-1