MANGOBA MELODY PIEDAD AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1680/2018

[2019] HKCFI 899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1680 of 2018

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;

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The 1^st applicant is a national of the Philippines and the mother of the 2^nd and 3^rd applicants. The 1^st applicant arrived in Hong Kong in December 1997 to work as a foreign domestic helper.  Her last employment contract was prematurely terminated on 4 April 2004 but she did not leave Hong Kong after that termination as is required.  She overstayed from 19 April 2004 until 6 February 2009 when she surrendered to the Immigration Department with the 2^nd applicant.  She readily admits she had no choice but to surrender because she needed documentation for her son to see a doctor.  The 3^rd applicant was born in June 2012 in Hong Kong like his brother.  Their father is also a Philippine national working in Hong Kong as a domestic helper.  She lodged a non-refoulement claim on 11 February 2009 for herself and the 2^nd applicant and on 29 July 2013 for the 3^rd applicant; she has acted on their behalf regarding their individual non-refoulement claims.  

2.  The Director of Immigration (“the Director”) rejected the applicants’ claims on 8 August 2017.  The applicants filed petitions/appeals with the Torture Claims Appeal Board (“TCAB”).  They were dismissed on 9 August 2018 after two separate hearing dates.  A notice of application for leave to apply for judicial review was filed on 20 August 2018; no oral hearing was requested.  I have considered the applications on the papers.

3.  The Director and the adjudicator set out the applicants’ claims and the 1^st applicant’s evidence in great detail in their decisions; there is no need to repeat it here.  The basis of her claim is that if she were to return Philippines she would be harmed or killed by her violent husband in the Philippines because the applicant had an intimate adulterous relationship with the father of her children in Hong Kong.  Essentially, it is a private domestic marital dispute.

4.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

a.  risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

d.  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

5.  The applicant’s supporting affirmation contains no grounds.  She only writes that their lives would be in danger if they returned home.  The applicant was given a further opportunity in January 2019 when this court wrote to her asking, among several questions, if she had any further submissions to make and although there was a response, there were no submissions.  She only forwarded the decisions of the Director and the adjudicator of the TCAB to the court.

6.  The adjudicator treated the appeal as a rehearing and held oral hearings on two separate dates.  She correctly set out the law and key legal principles applicable to all four grounds.  She set out in full and in detail the country of origin (“COI”) information that she relied upon.  The adjudicator also set out the applicants’ evidence in great detail as well as what transpired during the oral hearings.

7.  The adjudicator did not reject the applicant’s evidence or claim on credibility.  She was of the view that the applicants’ evidence was consistent and accepted that the applicant had before she left for Hong Kong been subject to physical and emotional by her husband in the Philippines.  The adjudicator accepted that there was a real risk of significant harm in the reasonably foreseeable future from her husband if she were to return to her home area because of her adulterous relationship in Hong Kong.

8.  The adjudicator was of the view however that the applicants could obtain state protection such that they would be no real risk that they would suffer significant harm.  She set out why she felt there was state protection available and the COI she relied on.  She found there to be extensive and effective infrastructure in place in the Philippines to assist potential victims of domestic abuse and violence.  There were ample reasons given why the adjudicator found there to be state protection available.

9.  She accepted that the applicant’s husband had had prior connections to the New People’s Army (“NPA”) but that the organisation’s power and influence had declined significantly and they were not active in urban areas.  She found there to be viable options for internal relocation for the applicants where they would be out of harm’s way.

10.  The adjudicator spent much time considering the children’s claims, in particular their medical conditions and learning difficulties.  She was satisfied that the COI information indicated there was free public education available to them and there was funding for special education centres and schools aimed at children with special needs.  The adjudicator found that the COI information indicated that there were laws passed to protect and provide for disabled people, satisfying her that they had access to healthcare and education and in the event that they encountered any discrimination, they could seek redress as provided by the legislative protections in place.  The adjudicator was satisfied there was no chance or risk that the 2^nd and 3^rd applicants would suffer serious or significant harm on return to the Philippines because of their disabilities.

11.  She was also sure that the applicant was employable and found there to be no risk or chance of discrimination which would amount to serious or significant harm.  She was educated in the Philippines completing her secondary education there and had extensive work experience as a domestic helper which means she was employable and had no language issues.  These were the concerns of the applicant.

12.  The adjudicator considered the applicants’ claims individually and cumulatively and concluded that they had not made out a successful case on any of the four applicable grounds.  They were unable to show they were at risk of torture, CIDTP, or persecution if refouled to Philippines.  They had failed to show that returning to the Philippines would expose them to a real risk of a violation of their rights to life so as to constitute a breach of BOR 2.  The adjudicator confirmed the decision of the director.

13.  Even though there were no grounds relied upon by the applicants, I did examine and scrutinised the adjudicator’s decision to ascertain whether she made any errors of law and whether she analysed the appeals/petitions with a high standard of fairness as is required.  I considered whether the application of the enhanced Wednesbury test was satisfied.

14.  A reading of her decision shows that she gave full consideration to the evidence, COI information and provided more than adequate reasons for her findings.  I found no failings on the part of the adjudicator.  I found no errors of law nor any evidence of procedural unfairness.  She did not fail to adhere to a high standard of fairness.  There is no realistic prospect of success and I refuse leave to apply for judicial review.

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