Eisma Perly Corbillon v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2088/2018

[2021] HKCFI 3364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2088 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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant first worked as a foreign domestic helper in Hong Kong in 1999.   Her last employment contract was prematurely terminated on 15/6/2006.  She did not depart Hong Kong within 2 weeks after the termination as she was required to.  She surrendered to the Immigration Department on 28/4/2011 and raised a torture claim on around 10/8/2011 (which was withdrawn on 4/11/2011). She stopped reporting to the Director from 2012 to 2016. She was afraid she would be detained. Subsequently, she raised a non-refoulement claim on 29/8/2016.

Background

2.The applicant was born in Tupa, Bolinao, Pangasinan, Philippines on 24/9/1973.  She was a Christian (Roman Catholic).  She married Joey on 27/12/1990 and had 4 children.  She received 10 years of formal education and attained the qualification of “secondary graduate” from Bolinao School of Fisheries.  She took up employment as a factory worker in the Philippines before working as a foreign domestic helper in Hong Kong from 1999 to 2006.

3.The applicant claimed that her husband abused alcohol and drugs. When her children were young, he sexually abused her on several occasions.  He also ill-treated his children.  She believed that she lost her baby in her third pregnancy due to the sexual assaults.[1]  Since 2003, Joey accused her of having an affair as an excuse for demanding more money from her.  He assaulted her when she briefly returned to the Philippines in 2003 and 2005.  He forced her to have sex with him when she returned to the Philippines to attend her father’s funeral.  In 2006, he made threats to kill her over the phone.  When she told him that she had lost her job and thought of going back to the Philippines, he threatened to kill her if he saw her.  The applicant last spoke to him in about 2011.

4.The applicant reported to the police in 2003 about the assault by Joey.  The police referred the case to the village chief who failed to reconcile their dispute.  She did not report to the police again.  She did not believe that the authorities in the Philippines could protect her.  She did not believe that internal relocation would be viable.  It would be difficult for her to look for a job at her age.

The Decision of the Director

5.The Director of Immigration (“Director”) dismissed her claims in the decision on 17/2/2017 which covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5] (“Director’s Decision”).

6.The Director found that there was no real risk of harm from the applicant’s husband.  The reasons were as follows:

i.  She and Joey had not communicated with each other for more than 5 years since 2011.  Given the nature, severity, duration and effects of the threats and harm, the Director did not accept that the perceived risks of harm were imminent, foreseeable or substantial [13.6 of the Director’s Decision];

ii.  The availability of state protection further negates the risks [14]; and

iii.  Internal relocation to Quezon City and Davao City would be viable [15.5]

The Decision of the Board

7.The applicant attended a hearing at the TCAB on 31 May 2018. She acted in person and gave evidence.  The Board dismissed the appeal in its decision on 14/9/2018 (“Board’s Decision”).  The Board concluded that there was no substantial ground to conclude that she would face a real risk of ill-treatment if she returned to the Philippines.

8.The Board accepted that Joey assaulted her in the past.   However, the Board did not accept that Joey could find her wherever she went if she returned to the Philippines ([39] of the Board’s Decision).  The Board was also satisfied that she could safely relocate to Pangasinan (where all of her ten siblings resided) or some other places in the Philippines outside Manila ([41]). All her children were adults and there was no reason for her to return to Manila.

Judicial Review

9.The applicant filed the leave application on 2/10/2018.  She did not specify any error in the Board’s Decision.

10.In my view, the evidence supported the conclusion of the adjudicator.  The factual basis of her claim did not support any real risk of ill-treatment or harm.   I agree with the adjudicator.

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

Conclusion

12.The intended judicial review is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review.

Dated the 16^th day of November 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