SALVA MARITES CORDERO v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 22/2018

[2018] HKCFI 1967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 22 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 refused.

Observations for the Applicant:

1.  The applicant is a 42-year-old national of the Philippines who last arrived in Hong Kong on 9 April 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 10 May 2013 or within two weeks of its early termination.  However, when her contract expired on 10 May 2013 she did not depart and instead overstayed until 15 July 2013 when she was arrested by the police for theft for which she was later convicted and sentenced to 12 months imprisonment.  Upon her discharge from prison she lodged a non-refoulement claim with the Immigration Department on 15 March 2014 on the basis that if she returned to the Philippines she would be harmed or killed by her abusive husband.  She has since been released on recognizance pending the determination of her claim.

2.  The applicant was born and raised in Newagac, Gattaran Cagayan, the Philippines.  After leaving school she worked as a domestic worker in Singapore from 1992 to 1994.  Upon returning to the Philippines, she married her husband in 1995 and became a full-time housewife raising four children while her husband worked as a driver to support the family.

3.  One day in 2008 two men came to the applicant’s home looking for her husband who was then out of town, they then disclosed to the applicant that her husband was involved with the New People’s Army (“NPA”), the armed wing of the Communist Party of the Philippines banned by the government as a terrorist organization.  The applicant was shocked by the disclosure as she was concerned that it would affect the safety of their children and the family.

4.  Upon his return home and was confronted by the applicant, her husband admitted to be a member of NPA long before their marriage, and when the applicant pleaded with him to quit NPA and when he refused, the couple broke into a heated quarrel during which the applicant was punched twice on the face by her husband.  She became very upset and brought the children with her to stay with a relative.

5.  After a few days the applicant returned home, and although her husband had apologized for slapping her, he insisted that he could not leave NPA as he feared that he would be killed, and when the applicant insisted that he should leave the group, frequent quarrels ensued between the couple that about a month later the applicant decided to leave her husband by moving with her children to her aunt’s place in Las Pinas, Metro Manila without any further encounters with her husband, but when she heard from a neighbor that her husband was looking for her and threatened to kill her if she failed to return, the applicant felt that it was no longer safe for her to remain in the Philippines and therefore left later in the same year for Hong Kong to work as a domestic helper, and when she overstayed in 2013 she lodged her non-refoulement claim, for which she completed a Non-refoulement Claim Form on 16 March 2015 with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 10 June 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

7.  In his decision the Director found the low intensity and frequency of past ill-treatment from her husband indicative of a low level of risk upon the applicant’s return to the Philippines, that her dispute with her husband was a private domestic matter and that if such risk from her husband still persists after all these years that state and police protection would be available to her if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 107 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 work experiences to move safely to other areas away from her home district such as Zamboanga City or Manila where her children live and where she had stayed before without any incidents until she left for Hong Kong.  

8.  By a Notice of Further Decision dated 6 June 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which she filed her appeal on 22 June 2015, and attended two oral hearings on 21 September 2016 and 24 July 2017 before the Board during which she declined to give evidence but did answer some questions from the adjudicator for the Board.  On 29 December 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found no evidence adduced by the applicant to show that she had suffered any ill-treatments physically or mentally that there is a current genuine and substantial risk of harm to her if refouled, that her fear of harm does not arise on account of her race, religion, nationality, member of a particular social or ethnic group or political opinion but was instead just a domestic dispute between her and her husband, that even if she thought that such risk of harm still persists that state or police protection would be available to her, and that such risk is confined to her home area that she can always move to other areas such as Manila where it would be difficult if not impossible for her husband to locate her.

11.  On 4 January 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1)  error/misdirection in law for rejecting her claim and dismissing her appeal and for failing to properly consider her claim and to make proper assessment and inquiry into the situations in the Philippines;

(2)  procedural impropriety for failing to assess her fear arising from her claim under all the applicable grounds;

(3)  procedural impropriety for failing to make proper observation of her fear of harm not only from her husband but also from NPA and their terrorist acts in the Philippines frequently causing deaths and injuries to the police and its citizens in various parts of the country; and

(4)  error/misdirection in law for failing to take into account and consideration of the psychological strain and threats to the applicant and other members of her family.  

12.  These are all very broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Board had erred in their decisions, or in what way did they fail to take into account of the situations in the Philippines when it was clearly a domestic dispute between her and her husband.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.  Furthermore, as it has been established by both the Director and the Board that the risk of harm form the applicant’s husband is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

14.  In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

15.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his 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