RUFINO GERLIE MOLTIO alias MOLTIO GERLIE alias RUFINO GERLIE alias RUFINO GERLIE M. v. TORTURE CLAIMS APPEAL BOARD

HCAL 3159/2019

[2020] HKCFI 2522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3159 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of the Philippines who last arrived in Hong Kong on 5 September 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 5 September 2017 or within 14 days of its early termination, but when it was prematurely terminated on 13 September 2015, she did not depart and instead overstayed in Hong Kong, and on 7 January 2016 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to the Philippines she would be harmed or killed by the local drug syndicates for reporting their crimes to the police.     

2.  By a Notice of Decision dated 26 March 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by drug syndicates upon her return to the Philippines due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 104 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the Philippines away from her home district in large cities such as Manila where it would be difficult if not impossible for those drug syndicates to locate her.

4.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 11 February 2019 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 15 October 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 24 October 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely repeated her claim that she cannot go home because her problem has not yet been solved without putting forward any proper ground for her intended challenge.

6.  However, before her application could be dealt with by the court, the Applicant on 18 September 2020 filed an affidavit requesting to withdraw her leave application because “her problem in her home country is finished”.

7.  In the premises, and as the basis of her claim no longer exists, it would be appropriate for her application to be dismissed rather than withdrawn. Accordingly, I accede to her request and dismiss her leave application.   

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