Quintero Hasle Calise v. Torture Claims Appeal Board

HCAL 1076/2017

[2018] HKCFI 945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1076 of 2017

BETWEEN

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 34-year-old national of the Philippines who last arrived in Hong Kong on 25 October 2012 with permission to remain as a foreign domestic helper until 11 October 2014 at the expiration of her employment contract.  When her contract was prematurely terminated on 12 December 2012, her stay was allowed to be extended to 28 May 2013 when she did not depart and instead overstayed until 21 August 2015 when she surrendered to the Immigration Department and lodged her non-refoulement claim 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 Bongloy, Dingle, Iloilo City, the Philippines.  After leaving school she worked in various jobs including as a saleslady and domestic helper during which she married her present husband whose family owned an auto-repair shop, and gave birth to two sons.  After marriage her husband rarely worked and became an alcoholic.  As a result they had frequent quarrels during which her husband would become abusive by slapping her around.

3.In 2006 her husband’s abusive behavior became worse when he would start hitting and kicking the applicant and would sometimes even be abusive to their children.  By 2009 the applicant found it intolerable to continue living with her husband and therefore went to work as a domestic helper first in Singapore and subsequently in Hong Kong, returning to the Philippines only to visit her sons and to stay at her parents’ place.  During one of such visits in 2012 the applicant had a meeting with her husband to discuss about their marriage when her husband asked her for money, and when she refused he punched her in the stomach, pulled out a gun and fired once at the ceiling.  The applicant was so frightened that she fled and hid in her uncle’s place to avoid her husband for the rest of her trip before returning to Hong Kong in July 2012 for her job, and when her employment contract was subsequently terminated, she did not want to return to the Philippines for fear of being harmed by her husband and therefore overstayed in Hong Kong when she subsequently lodged a non-refoulement claim.

4.By a Notice of Decision dated 28 October 2016 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 and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) 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”).

5.In his decision the Director found no reliable evidence of any real intention of her husband to kill or to cause serious harm to the applicant, and given the low intensity and frequency of past ill-treatments that there are no substantial grounds for believing that there will be any real risk of the applicant being harmed or killed by her husband upon returning to the Philippines, that in the absence of any involvement of the state or police in her husband’s actions, state and police protection would be available to the applicant 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 102 million people spread over a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the applicant to move to areas other than her home village such as Manila or Cebu away from any disturbances from her husband.     

6.On 11 November 2016 the applicant filed her appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 27 September 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 23 November 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board accepted that the applicant has been threatened and abused by her husband and that she subjectively worries that she may be harmed by him, but found her claim that she came to work in Hong Kong was to escape from her husband inconsistent and unreliable, and concluded that she has failed to establish any real risk of being harmed by her husband upon her return to the Philippines with reasonable internal relocation alternatives in other areas such as Manila or Cebu away from her husband.  

8.On 14 December 2017 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but neither in it nor in her supporting affirmation of the same date did she set out any grounds for her intended challenge, and at the oral hearing of her leave application she just asked the court to carefully review that decision of the Board without making any further submission. 

9.As clearly stated in CH v Director of Immigration [2011] 3 HKLRD 101, high standards of fairness do not entitle the applicant to just make the claim and then simply sit back for the Court to look to see if any ground or basis which may exist to support her intended challenge, and on the facts of the case and the expressed findings by both the Director and the Board that state protection and reasonable internal relocation alternatives are available to the applicant upon returning to the Philippines away from whatever risk of harm that may come from her husband, I am unable to think of any reasonably arguable basis that the applicant may rely on for her intended application for judicial review.

10.Nevertheless, 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.

11.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 her leave application.

Dated the 4^th day of May 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