Dimaculangan Merilo Evano v. Torture Claims Appeal Board / Non-refoulement Claims Petition

HCAL 1599/2019

[2021] HKCFI 519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1599 OF 2019

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 P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant was born on 30/7/1962 in Lipa City, Batangas, Philippines.  She was a Catholic and spoke Tagalog.  She received education up to F.4 level.  She had many years of work experience.  She used to be a domestic helper in H.K. (1992—2009).  She last operated a pig farm and rice farm in the Philippines (2010—2016).

2.She was divorced.  Her son, mother and siblings were in the Philippines.

3.She arrived at Hong Kong on 7/10/2016.  She overstayed in Hong Kong until 20/10/2016 when she surrendered to the Immigration Department[1]. She filed a non-refoulement claim on 7/4/2017.

Background

4.About September 2016, at her backyard, she saw PJ handing a large plastic bag of white powder to Boy (“Jesus Tumaneng”).  She thought it was drug trafficking.  She scolded PJ who threatened to kill her if she told anyone.  She however informed the head of the village council.  A few days later, Boy was arrested.  The next day, PJ came to her house and accused her of reporting to the police.  In fact, PJ mistook that she had reported to the police.  He threatened to kill her.  The next day, PJ and some unknown men threw stones at her house breaking the windows.  PJ continued his threat the next day.  She was terrified and decided to leave the Philippines.

5.She did not report to the police as they were corrupt.  She had to register her residence with the government.  She believed PJ could bribe officials to locate her even if she went to other cities.

6.She feared that she might be killed or harmed by PJ and his gang if she returned to the Philippines.

7.The Director of Immigration rejected her claim on 15/10/2018.  The TCAB rejected her appeal on 16/5/2019.

The decision of the Director

8.The Director found that there was no genuine and substantial ground to believe she would be harmed or killed by PJ and his gang for the following reasons:

a.  The applicant only received threats from PJ.  There was no direct physical violence despite someone threw stones to her house.  She sustained no injury amounting to ‘a minimum level of severity’.

b.  The applicant lived alone.  Had there been any intention to kill her, PJ and his gang would have plenty of chances.

c.  She was able to inform the head of the village council about the incident.  Boy was arrested after a few days.  There was no evidence that PJ and his gang were tracing her after she left for Hong Kong.

d.  It was a private grudge between PJ and the applicant.  There was no evidence that any official was involved.  There was nothing political.

e.  According to some COI, the police in the Philippines was corrupt and ineffective. There was a serious drug problem in the country.  On the other hand, there was positive steps taken to improve the effectiveness of the police.  The government had been taking steps to tackle human rights violations by the police.  Training programs to reform the police were implemented.  Ombudsman office had collaborated with NGO to tackle corruption cases.  Complaint channels were established to deal with police misconduct.  Anti-corruption law was in place.  There was reasonable State protection in the Philippines.

f.  The law in the Philippines allowed freedom of movement. The applicant had many years of working experience.  She was educated up to college level.  She spoke Tagalog and a little English.  It was not unduly harsh for her to relocate to large cities like Cebu or Davao. Given the large population in those cities, it would be difficult for PJ to locate her.

9.There was no ill-treatment of a minimum level of severity as required under BOR 3. This claim failed.  Similarly, there was no evidence of arbitrary deprivation of life.  BOR 2 failed.

10.The applicant was not within the ambit of persecution as defined in the Refugee Convention.  There was no state involvement. The fear was not well founded.  This claim failed.

11.There was no severe pain or suffering as defined under s. 37U (1) of the Immigration Ordinance.  There was no public official involved nor was any conduct under their instigation or acquiescence.  The applicant was not targeted by the Philippines government.  There was reasonable State protection.  This claim failed.

The decision of TCAB

12.The applicant filed an appeal to the TCAB on 22/10/2018. The adjudicator decided not to hold an oral hearing.  He bore in mind the principles set down in the ST case[2]. In gist, the adjudicator opined that there was no further question needed to be asked and there would not be anything useful for the applicant to contribute.

13.The TCAB dismissed her appeal on all grounds on 16 May 2019.  The reasons are as follows:

a.  In relation to persecution risk, the adjudicator found that the applicant never suffered any harm from PJ and his gang.  There was only verbal threat.  It was a private grudge.  The applicant did not have any problem arising from reasons under the Refugee Convention.  She was free to leave the country.  There was reasonable State protection.  The applicant failed to establish a well-founded fear of persecution.  The applicant’s encounter did not amount to persecution for a convention reason.

b.  In relation to CIDTP risk under BOR 3, the adjudicator found no ill-treatment up to ‘a minimum level of severity’.  There was reasonable State protection.  Given the overall circumstances, there was no genuine and substantial risk of severe ill-treatment.  This claim failed.  For similar reasons, the adjudicator found no evidence of arbitrary deprivation of life. BOR 2 failed.

c.  In relation to torture risk under the Immigration Ordinance, there was no torture as defined under Article 3 of CAT.  There was no State involvement.  There was no foreseeable future risk that the applicant would subject to torture if she returned to the Philippines.  This claim failed.

14.The area of the Philippines was 300k square km with a population of 104 million. The adjudicator found that it was not unduly harsh for her to relocate to other cities with her age and experience. Manila and Quezon would be viable options.

15.The TCAB rejected her appeal on 16/5/2019.

Judicial review

16.The applicant filed an application for leave for judicial review on 12/6/2019.  In her affirmation in support, she alleged that the TCAB was wrong for not holding an oral hearing.  At least, she should be invited to file a written submission.  Besides, the adjudicator relied on unofficial sources of news and they were not credible.

17.Upon her request, this court hold an oral hearing on 10/12/2020.  The applicant confirmed that she had nothing to update.  She had no additional information in relation to the leave application.

The issue of COI

18.The applicant complained that the TCAB used outdated COI which were mainly hearsay.  The adjudicator indicated that he had considered the COI listed in the appendix of the decision of the Director.  The applicant could always counter check through the internet if she wished.  I do not think there is any irregularity in this respect.

19.Some of the COI were from USSD and CIA. Some from well-established newspapers.  They were mainly dated 2018.  It is incumbent upon the applicant to point out specific changes of circumstances since then.  A general criticism cannot bring her case any further.

Oral hearing

20.Before deciding whether to hold an oral hearing, the adjudicator bore in mind the principles set down in the case law.  He had read the appeal bundle and the decision of the Director.  It was a well-informed decision.

21.The applicant maintained that she should at least be invited to file written submission.  In my view, this ground is more an excuse than of any substance.  During the oral hearing before this court, she was given ample chance to supplement her claim.  She got nothing to add.  Had she wanted to submit further information, she should already have ample time to prepare.  I reject this ground.

Conclusion

22.About the decision of the TCAB, the applicant did not point out any specific errors. In my view, the evidence as summarised above fully support the decisions.  I am satisfied that there was no error of law nor was there any procedural irregularity.  It is rational.

23.The Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review.

Dated the 3^rd day of March 2021

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