Dote Purisima Tamayo and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3007/2018

[2021] HKCFI 879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3007 OF 2018

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:

1.  ‘Joseph Babu Elizabeth’ be added as the 2^nd Applicant; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicants:

1.The 1^st applicant came to Hong Kong on 7/11/2015 as a foreign domestic helper until 17 May 2017.  Her contract was terminated on 26/10/2016.  She overstayed until 25/12/2016 when she was arrested by the police.  She lodged the present claim on 29/12/2016.

2.While in Hong Kong, she cohabited with an Indian[1] since October 2016.  She gave birth to the 2^nd applicant in Hong Kong on 9/3/2017.  She applied for non-refoulement claim on behalf of the 2^nd applicant on 15/6/2017.[2]

3.The Director rejected her claim on all grounds 27/2/2018.  The TCAB dismissed her appeal on13/11/2018.  She filed the leave application on 28/12/2018.

4.In her Form 86, she only put herself as the applicant.  In view of this, this court called her on 18/3/2021 to invite her to add her daughter as the 2^nd applicant.  This is appropriate given that the claim covered both applicants at all stages.  She consented.  This court added her daughter as the 2^nd applicant.  The Form 86 would be amended accordingly.[3]

Background

5.The 1^st applicant was born on 9/12/1971 in Iloilo, Western Visayas, Philippines.[4] She married in 1990 with 3 daughters [5]. She was a Catholic. She received education for 15 years. Her mother and 6 brothers were in the Philippines. Her father was deceased. Her husband passed away in 2010.

6.She had worked in Malaysia (1997), Singapore (2004) and Hong Kong (2010-2016) as a domestic helper.

7.She informed her mother about her pregnancy around October 2016.  Her mother was angry because it was out of wedlock.  Her 2^nd brother was also angry and threatened to kill her if she returned.  She claimed that her 2^nd brother was violent and possessive.  He had mental problem.  He was once admitted to a mental hospital.  She thought it was due to his experience in the army.

8.She recalled an incident in 1989 when her 2^nd brother beat her up on knowing that she had a boyfriend at school.  Her right leg was cut.  She received herbal medicine treatment and needed more than a month to recover.

9.In October 2016, she was terminated because of the pregnancy.  Her 4^th brother called and accused her of bringing embarrassment to the family.  He was a conservative man. [6]  Her pregnancy might ruin his promotion prospect.  He threatened to kill her.  She did not return to the Philippines but cohabited with the Indian.

10.Around March 2017, her mother told her that her brothers were still angry.  She should not return to the Philippines.  Her daughters were fine in the Philippines.

11.In May 2017, the daughter of her 2^nd brother wrote to her. Her niece told her not to return to the Philippines.

12.She was afraid her brothers would kill her.  The police could not protect her round the clock.  She did not know any channel of complaint against the police. She did not know any organization who would help her.  She believed she would suffer discrimination for having a child out of wedlock.  It would be worse that she cohabited with a non-Filipino.

13.She could not move to other cities as she had no money.  She had no relatives elsewhere.

14.She and her daughter would be in great danger from her brothers if both returned to the Philippines. [7]

The decision of the Director

15.The Director found that the future risk of harm to her and her daughter was low. The Director based on the following: [8]

a.  Despite the 1^st applicant claimed that her 2^nd brother beat her up on knowing that she had a boyfriend at school in 1989, the 1^st applicant got married in 1990 and gave birth to 2 daughters.  She was still at school until 1994.  Her 2^nd brother did not do anything.

b.  Her brothers had not contacted her since 2016.  There was no evidence about their present attitude to the 1^st applicant and her daughter.  It was speculation of the 1^st applicant that they would continue the threat against her.

c.  She received information from her mother and niece about the current situation.  This information was hearsay.  There was no evidence that her brothers were looking for her.  It was not accepted that they had the resources and manpower to trace her all over the Philippines.

16.The Director accepted that there were problems of corruption and abuse of power in the Philippines.  There was an over-burdened criminal justice system.  Domestic violence was a serious problem.  The process of domestic violence cases was slow and ineffective.  Nevertheless, there were continuous effort to reform.  More training in human rights was in place for the police.  The Ombudsman office was tasked to tackle illegal and improper conduct of the government.  The government and NGO had stepped up the legal and non-legal protections to eliminate violence against women.  Temporary care and shelter for women were established to help women and children.  The Director concluded that there was reasonable State protection.  The authorities were able to exercise due diligence to uphold the rule of law. [9]

17.The law in the Philippines allowed internal movement.  Cebu and Manila would be reasonable alternatives.  Her brothers could not locate her in the Philippines which was a large country with huge population.  There were government institutions and NGO assisting abused women and children.  The applicants should be able to relocate. It was not unduly harsh.[10]

18.The Director rejected all claims of both applicants on 27/2/2018.

The decision of TCAB

19.The adjudicator held a hearing on 31/7/2018. The adjudicator rejected the claims on 13/11/2018. The adjudicator pointed out the following to support the conclusion that both applicants were not entitled to non-refoulement protection:

a.  In the oral hearing before the TCAB, the 1^st applicant indicated that she might go to Manila.  She should be able to find a job once her daughter went to school.  She was aware of government agencies and NGO which helped women who left violent homes and domestic violence.  She could seek assistance to start a new life however she had no contact with any NGO.

b.  In case her cohabitee was unsuccessful in his claim, he would return to India.  He was married there.  She would go back to the Philippines with her daughter.  She preferred to stay in Hong Kong for another two years until her daughter was older.  She could leave her daughter to someone and go to work then.

Torture risk [11]

c.  The adjudicator pointed out that the harm as the 1^st applicant claimed was from private individuals.  There was no public official involved.  There was reasonable State protection according to the COI.  The 1^st applicant’s fear was not within the definition of ‘torture’ under s.37U of the Immigration Ordinance.

d.  According to the 1^st applicant the risk of torture might arise as she was a single mother and her daughter was born out of wedlock and of a ‘mixed race’.  There was no credible evidence to indicate that there would be substantial risk that the 1^st applicant and her daughter would suffer prejudice.  The 1^st applicant’s fear in this respect was speculative.  The adjudicator rejected the claim based on torture risk.

BOR 3 [12]

e.  The 1^st applicant had been outside the Philippines for most of the past 20 years.  Her brothers last contacted her in 2016. She was unable to know the updated attitude of her family.  They might be more receptive.  It was difficult to understand that her mother and brothers would inflict harm on the 1^st applicant and her daughter.

f.  There was reasonable State protection according to the COI. Greater resources were available to the government and NGO to assist vulnerable women.  The adjudicator was satisfied that the Philippines government was able to provide appropriate protection to obviate the real risk from her brothers and family.

g.  The adjudicator opined that the 1^st applicant could relocate to other places to alleviate the risk which was localised.  The adjudicator pointed out that there would be assistance from the government and NGO which provided support and assistance to single mothers who left their families in fear of domestic violence.  There was possibility that the 1^st applicant could obtain work and her daughter to day care services.  There was no substantial risk of CIDTP if she returned to the Philippines.

h.  The adjudicator had considered the claim that the 2^nd applicant might suffer mistreatment from her family because she was born out of wedlock and of a mixed race.  The adjudicator found no credible evidence to support that. It was speculation only.

i.  The adjudicator rejected BOR 3 claim.

Persecution risk [13]

j.  Her brothers would allegedly harm the applicants for personal reasons which were not within the Convention reasons.

k.  There were reasonable State protection and relocation alternatives.

l.  The fear that the 2^nd applicant would be mistreated was not supported by credible evidence.  It was mere speculation.

m.  The claim based on persecution risk failed.

BOR 2 [14]

n.  There was no evidence that the applicants would face arbitrary deprivation of life. There was no evidence of dire humanitarian conditions in the Philippines to render refoulement a violation of the right to life.

o.  This claim failed.

Judicial review

20.The 1^st applicant filed an application for leave for judicial review on 28/12/2018. In her affidavit in support, she did not point out any specific error in the decision of the TCAB.

21.The 1^st applicant filed a letter dated 11/3/2020 to this court. She indicated that she would like to stay in Hong Kong for a few years more until her daughter (2^nd applicant) was bigger.  By then, she could leave her daughter to someone so that she could find work. Her position was consistent during the oral hearing—she could go to Manila when her daughter was older.  Her daughter could go to school and she would be able to work. [15]

22.The adjudicator was alive to the situation of the 2^nd applicant.  He had discussed with the 1^st applicant during the oral hearing.[16]  He had considered the situation in the Philippines and satisfied that there were government and NGO organizations which could alleviate the problem.  He considered that there was no credible evidence that both applicants would suffer mistreatment and discrimination which would make relocation unreasonable. [17]

23.In my view, the adjudicator had considered the position of the 2^nd applicant separately with care.  I am satisfied that there is no error of law nor is there any procedural irregularity.  It is not irrational.

Conclusion

24.For the reasons above, both applicants’ claim is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review.

Dated 7^th day of April 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