Ms. Serrano Ma. Belinda Bravo v. Torture Claims Appeal Board

HCAL141/2017
[2018] HKCFI 84

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 141 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

Order by the Honourable Mr. Justice Li:

Leave to apply for Judicial Review refused.

Observations for the Applicant: 

1.The applicant was born on 22 July 1964. She was a widow. She had two adult children in the Philippines.

2.Her family was never arrested, charged or detained in the Philippines.

3.The applicant came to Hong Kong to work as a domestic helper in 2000. Her contract was terminated on 10 January 2005. She overstayed in Hong Kong since 25 January 2005.

4.On 22 October 2013, she was arrested for overstaying. She served 6 months’ imprisonment. After discharge, she filed a claim on 28 February 2014. She was on recognisance since 16 April 2014.

5.The applicant filed an application for leave to judicial review on 18 April 2017 against the decision of the Torture Claim Appeal Board dated 21 March 2017.

6.The basis of her claim was that she feared that she would be harmed or killed by Nick. She gave evidence against Nick who was subsequently convicted by murder of her late husband. Nick was released from prison in 2003.

7.The Adjudicator dismissed her appeal. The evidence did not support any of the applicable grounds:

a. The last time the applicant met Nick was in his trial. He went to the house of the applicant’s sister-in-law to ask about the applicant in 2004. Her sister-in-law sought help from the village head, Nick never returned. This demonstrated that Nick was not after the applicant.

b. There was no pain or suffering, physical or mental, on the applicant by Nick. There was no official involvement. It was neither instigated or acquiesce by any public official.

c. The applicant never reported the threat from Nick to the police in the Philippines.

d. There were objective COI from US and Canada showing that state protection was available in the Philippines.

e. The applicant had received secondary school education. She had worked in Hong Kong. She should be able to relocate to Manila or Zamboanga.

8.The Adjudicator also dismissed the claim on BOR 2 He said that it was not a case of death sentence and therefore not applicable.

9.Article 2(1) safeguards the right to life—every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 

10.I note the difference in wording of Article 2 BORO and Article 2 of the European Convention of Human Right. However, so far as protection of the right by law is concerned, I agree with the reasoning of the European Court of Human Right.

11.A State should take appropriate steps to deter offences against a person and to prevent such risk to life by putting in place effective criminal-law provisions backed up by law-enforcement machinery. However, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. (Osman v UK, ECHR judgment of 28 October 1998, §§115—116)

12.In my view, the situation claimed by the applicant fell far short of the above requirement. The applicant was afraid of Nick. There was no evidence, apart from what she believed, that the authorities of the Philippines knew or should have known about this threat. Given the analysis by the Adjudicator, the government of the Philippines was able to protect its citizen.

13.The claim under Article 2, BORO, failed.

Conclusion

14.The applicant attended a hearing on 17 August 2017. She had no further document to file. She did not know she could apply for asylum until 2014. That was the reason for the delay. She asked to stay for 6 months longer so that she could make sure everything would be OK. There was a lot of rebels at her hometown.

15.I agree with the findings of the Adjudicator above. I have considered the grounds raised in her affidavit. There is no public law ground. The Applicant’s claim is not reasonably arguable and with realistic prospect of success. I refuse leave for judicial review.

Dated  16^th day of January 2018

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