Tizon Evelyn Santos v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3015/2018

[2021] HKCFI 2511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3015 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 the Applicant being absent 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 a domestic helper in Hong Kong.  She was allowed to stay until 12/11/2016.  She surrendered to the Immigration Department on 14/11/2016 for overstaying.  She raised the present non-refoulement claim on 10/3/2017.  

Background

2.The applicant was born on 10/10/1981, in Naga City, Philippines.  She received education up to high school level.  She was an odd job worker for 10 years.  She worked as a domestic helper in Hong Kong since 2012 until October 2016 intermittently.  She got married in 2001.  Her husband, 3 children and other siblings lived in the Philippines.

3.In around 2004, her husband started to have drinking and drug problems.[1]  Their relationship deteriorated.  Later, he joined the “Naga Boys” which was a gangster group involved in illegal activities.  Since then, he seldom returned home.

4.In 2005, she was often assaulted by her husband who asked her for money. He was unemployed.  she was once injured by him which developed into a serious inflammation.  She was treated with antibiotics and painkillers in a clinic.  Her husband threatened to kill her if she reported to the police.

5.Later on in 2005, her husband forced her to have sex with his friend (“Kuya”).  He received money and drugs in return.  She could not give more detail about this incident.[2]

6.She was also forced to have sex with other associates of Kuya like a prostitute.  She reported to the police in 2007 but they disbelieved her.[3]  She thought they were connected with the Liberal Party and the gangsters.  

7.She went to Cavite City with her children intending to seek shelter from her sister.  Her brother-in-law refused.  He did not want trouble from the gangsters and her husband.  She stayed in a park with her children for a month. She subsequently met a man (“Leo”) who sheltered them.

8.In July 2007, Leo left the Philippines to work overseas.  She had no choice but returned home with her husband. [4]  At that time, she was 2 months pregnant with Leo’s baby.  The baby was eventually born in 2008.  Her husband thought he was the biological father.

9.In the next two years, both of them had odd jobs.  Their relationship was fine.  Subsequently, she decided to work in Hong Kong as a domestic helper. Her husband supported this plan.

10.In 2009, she eventually borrowed a loan of 200,000 pesos to pay for the expenses for arranging a job in Hong Kong.  She and her husband signed an agreement to repay in 10 months with a monthly interest of 20%.  The lender was the Kuya’s wife who was also a gangster.  She did not know the other background of the wife.

11.In March 2010, she came to Hong Kong.  She remitted money back to her husband for repaying the loan.  It turned out that he spent the money on drinks and drug.  After 4 months, the lender sent his men to her home pressing for repayment.  Her mother told her that they threatened to harm her children.  She was in great distress in this period.

12.In January 2012, she returned to the Philippines after completion of her contract.  She obtained salary advance from her employer and repaid part of the loan.  She returned to Hong Kong in February on a new contract.  She kept sending money to her husband for repaying the loan as it had not been paid up.  In December, her contract was terminated early.  She returned to the Philippines.  She stayed with her sister at Cavite City to avoid the lender.  Her husband eventually learned about her return and demanded money.  He assaulted her.

13.In early 2013, she was located by the lender and her men.  They detained her and tortured her for 3 days.  She was sexually abused by them.[5]  Subsequently, they released her as she promised to work in Hong Kong to repay the loan.

14.She returned to Hong Kong again in 2013 as a domestic helper.  She returned to the Philippines in 2015.  She was forced by her husband to work as a prostitute subsequently.

15.In November 2015, she borrowed another loan of 80,000 pesos from the lender.  She used the money to arrange work in Hong Kong again.  The terms were the same as before but she did not sign any agreement.  The lender threatened to kill her children if she did not repay. [6]

16.In mid-2016, she could not repay.  The lender and her men assaulted her sister and mother.  They threatened to use her sister as a sex slave.  Her mother dared not report to the police.  Her mother told her that the lender had framed her up for a drug trafficking case.  She would be arrested once at the airport.[7]  In September 2016, her mother reported to the police that the lender and her men tried to burn her house.  The police did not believe her.[8]

17.On 29/10/2016, she terminated her contract intending to return to the Philippines.  Her mother told her on the phone that her husband had discovered that he was not the biological father of the youngest daughter.  He also knew she had a boyfriend in Hong Kong.  He threatened to kill her.  Her husband assaulted her mother.  She was admitted to a hospital.  She was also afraid that she might be arrested because of the false case.  She decided to overstay in Hong Kong.  She lost contact with her mother since November 2016.

18.She did not trust the police as they were connected with the lender and the gangsters.  She did not think the complaint channels or the government could assist her.  She could not live in other parts of the Philippines as the lender could locate her.  She feared that the police might arrest her for the false case.

19.In gist, she was in fear that she would be harmed or killed by her husband and the lender.

The decision of the Director

20.The Director found that there was no real risk of harm if the applicant returned to the Philippines for the following reasons:[9]

a.  The applicant failed to give details about her husband’s connection with the Liberal Party and the “Naga Boys”.  The mayor (‘Robredo’), with whom her husband had worked, had actually died in 2012.

b.  She alleged in the NCF that she reported the sexual abuse to the police, however, she said she did not report during the interview.  Her explanation was not accepted.

c.  Despite the persistent assaults by her husband, she returned home with the children after staying safely in Cavite City in 2007.  This was inconsistent with her fear of ill-treatment.

d.  The applicant had traumatic experience with the lender while she was detained by them in early 2013.  She only recalled the sexual abuse after being reminded by the Director during the interview.

e.  After she was released, she was able to maintain daily life and returned to Hong Kong for a new contract.  She even secured another loan from the same lender in 2015 before returning to Hong Kong again.  There was no evidence that she was mentally disturbed.

f.  She kept on remitting money to her husband for repaying the loan despite she knew her husband had not repaid the lender.  Her conduct was unreasonable and inexplicable.

g.  She had been repeatedly assaulted by her husband. The most serious incident was an inflamed wound at her foot.  As a whole, there was no injuries which amounted to ‘a minimum level of severity’.  Had the lender or husband wanted to seriously harm or kill her, there were plenty of chances.  This indicated that there was no such intention.

h.  Her problems with husband was domestic in nature. The debt owed to the lender was also a private matter.  They did not arise from any political issue nor was there any officials involved.  She had made no formal report to the police about these events.

i.  The lender had framed her up with a drug trafficking case.  She only learned about it from her mother.  There was no detail about that case.  It defied common sense for the lender to do so.  There seemed to be no advantage to the lender.

j.  According to the COI, the police in the Philippines was corrupt and ineffective.  Domestic violence was a serious problem.  The criminal justice system was slow.  There was human rights abuse.  However, there were positive steps taken to improve the effectiveness of the police.  Training on human rights to police officers was provided.  Ombudsman office was tasked to tackle corruption cases.  Other complaint channels were enhanced to enable timely investigations of complaints.  Police officers were more equipped to deal with domestic violence.  The Women and Children Protection Desks were designated for these purposes.  There was reasonable State protection in the Philippines.  There was no evidence that the government failed to discharge their duties or tolerate criminal conducts.

k.  The applicant had sufficient work experience.  She was educated up to high school level.  The law allowed relocation.  It was difficult for her husband or the lender to locate her in a large country with huge population.  It was not unduly harsh for her to relocate to Quezon City or Manila. The applicant was not targeted by the government.  She could leave the Philippines with no difficulty.

21.The Director rejected her claim on all grounds on 22/2/2018.[10]

The decision of TCAB

22.The applicant attended a hearing on 27/7/2018.  The adjudicator had considered the applicant’s evidence, the NCF, and the record of interview [11]. The applicant gave evidence and answered questions.  There was no record of any complaint concerning the procedures at the TCAB.

23.The adjudicator dismissed her appeal on 27/12/2018.  The adjudicator opined that her evidence was fragmentary and inconsistent.  She concluded that there was no real risk of serious harm if she returned to the Philippines.  The reasons were as follows:

a.  She failed to mention to the adjudicator about the sexual assault by Kuya and the associates. She did not mention the sexual abuse by her husband’s brother despite she mentioned it in the written claim.

b.  She failed to mention to the adjudicator that she was forced to work as a prostitute in 2015.  This was inconsistent with her written claim.[12]

c.  She was inconsistent whether she had reported these incidents to the police.  Despite her explanation, the adjudicator opined that the applicant had not sought protection from any authorities. [13]

d.  The adjudicator accepted that there were wide ranging laws and services to address the issue of domestic violence.  She found consistent reports in various COI.  The adjudicator found that the evidence of sexual exploitation by her husband and his associates was implausible.  There was effective State protection and no real risk from her husband. [14]

e.  The adjudicator found that the further loan from the same lender in 2015 was highly implausible and unlikely given the traumatic experience during the detention and threats from the lender in 2013.  The adjudicator found this ill-treatment an exaggeration.

f.  The adjudicator queried the applicant’s early termination of her contract in 2016.  It was unreasonable as she made no alternative arrangement for other sources of income to settle the loans.  The adjudicator had serious doubts as to the real reason for the termination of her contract.[15]

g.  As to the frame up of drug trafficking, the applicant could not provide more details.  There was no warrant or notice issued to her via her family.  The police had not approached her.  The adjudicator found the assertion of frame up implausible.[16]

h.  The adjudicator found that there was reasonable relocation option such as Manila.  There were NGO offering help to voluntary returnees.

i.  The adjudicator dismissed the appeal and confirmed the decision of the Director on 27/12/2018.

Judicial review

24.The applicant filed an application for leave for judicial review on 31/12/2018.  In her affidavit in support, she did not specify any error of the TCAB decision.  She disagreed with the findings of the TCAB.  She repeated that she was sexually abused.  She was physically and mentally abused.

25.In my view, the evidence as summarised above fully support the conclusion of the adjudicator.  The factual basis of her claim was fragmentary and not credible.  There were fundamental inconsistencies.  I agree with the adjudicator.

26.I am satisfied that there was no error of law nor was there any procedural irregularity.  The decision of the TCAB is rational.

Conclusion

27.For the reasons above, the applicant’s application is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review.

Dated the 26^th day of August, 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