Purisima Aida P. v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 14/2019

[2022] HKCFI 102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 14 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:

1.   Extension of time for application for leave to apply for Judicial Review be refused; and

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The applicant entered Hong Kong as a domestic helper on 15/12/1996.  Her contract was terminated early.  She overstayed in Hong Kong until she surrendered to the Immigration on 16/8/2011.  She filed a torture claim which was dismissed on 8/2/2012.  She did not report to the Immigration Department until 24/6/2013.[1]  She raised the present non-refoulement claim on 18/3/2014. 

2.Initially, she also raised a non-refoulement for her son.  By a letter dated 5/7/2021, she informed this court that her son was granted permanent resident status in Hong Kong.  She filed a copy of the birth certificate which showed that her son was a permanent resident.[2] The following analysis would only concern the applicant.

Background

3.The applicant was born on 19/12/1969, in San Carlos City, Philippines.  She received education up to primary school level.  She had 8 siblings in the Philippines.  Her parents had passed away.  She worked as a domestic helper in Saudi Arabia for one and a half years. She had a son in Hong Kong.  She did not know the whereabouts of his father.  She was never arrested or imprisoned in the Philippines.  She had no association with any political group.

4.Since 1989, she had frequent quarrels with her brother “N” who took drugs.  “N” assaulted her causing injuries which recovered in about 4 days.  She was also assaulted by another brother “E” who was jealous of her being daddy’s girl.

5.While she overstayed in Hong Kong, her sister told her that something wrong would happen to her if she returned to the Philippines.  In September 2011, her sister told her on the phone that her siblings would shoot her.  They blamed her for not attending the funerals of their parents.  In 2015, her sister advised her not to return especially with her son. 

6.She did not know where to relocate.  Her siblings would be able to locate her.  She did not know any organization which could help.  She did not report to the police.

7.She feared that her siblings would kill her if she returned to the Philippines.

The decision of the Director

8.The Director found that there was low risk of harm if the applicant returned to the Philippines for the following reasons:[3]

a.  The applicant had been repeatedly assaulted by her siblings.  It was of domestic nature.  They continued to live together.  She could recover in a few days without treatment.  The injuries did not reach a minimum level of severity.

b.  The applicant had left home for more than 20 years.  It was no reason for her siblings to continue picking on her.  In fact, the evidence showed that the quarrels arose from minor disputes.  There was no evidence that her siblings would carry out the threats.  There was no imminent danger.

c.  She had delayed for 14 years until 2011 to raise a torture claim.  This conduct was inconsistent with someone who was in fear of ill-treatment.

d.  According to some COI, the police in the Philippines was corrupt and ineffective.  The judicial process was in serious delay.  There were human rights abuses.  However, there were positive steps taken to improve the effectiveness of the police.  Training on human rights and international humanitarian law was incorporated in training courses of police officers.  Ombudsman office was tasked to tackle complaints against public officials.  The “women’s desks” and WCPU[4] were established in police stations to address crimes against women and children.  There were government institutions and NGOs providing support to women and children.[5] There was reasonable State protection in the Philippines.  There was no evidence that the government failed to discharge their duties or tolerate criminal conducts.

e.  The applicant had work experience overseas.  She was only 46.  The law allowed relocation.  It was difficult for her siblings to locate her in a large country with a huge population of 107 million.  It was not unduly harsh for her to relocate to Quezon City or Manila.  Her siblings were jobless and alcoholic.  They would not have the resources to locate her elsewhere in the Philippines.

9.The Director rejected her claim on all grounds on 19/2/2016[6] and 18/1/2017[7].

The decision of TCAB

10.The applicant attended a hearing on 6/2/2017.  The adjudicator dismissed her appeal on 23/2/2017.  He opined that she was not truthful.  The reasons were as follows: [8]

a.  The applicant had delayed for 14 years before filing her torture claim in 2011.  This substantially affected her credibility.  She was evasive during the hearing.  She just stuck to one answer that she feared her siblings would kill her.  The adjudicator queried why she never tried to resolve the misunderstanding with her brothers. 

b.  She told the adjudicator that she did not know the reason for not reporting her brother “N”.  She also said she did not want “N” to go to prison.  She could not explain why relocation to Manila was not viable.

c.  The applicant did not report to the Immigration Department after her torture claim was refused.  Her reason that she was pregnant was a lie.  She again failed to attend a court hearing in 2014 for the charge of breach of condition of stay.  The adjudicator opined that she would choose to infringe the law to serve her own purposes.   

d.  While she might have been assaulted by her brothers, the injuries were not serious.  They did not attain a minimum level of severity.  In fact, she did not move out of the family home despite all these alleged assaults.  There was no imminent future risk of harm.  There was no genuine and substantial risk of ill-treatment.  The assault did not come within the definition of torture under s.37U of the Immigration Ordinance.

e.  The evidence showed that it was a family dispute.  There was no persecution within the definition of the Convention.  There was no risk of arbitrary deprivation of her life.

f.  The adjudicator dismissed the appeal and confirmed the decision of the Director on 23/2/2017.

Judicial review

11.The applicant filed an application for leave for judicial review on 3/1/2019.  She was more than 1½ years out of time.  In her affidavit in support, she alleged that the adjudicator failed to consider State due diligence.  The adjudicator failed to assess the conditions in the Philippines and BOR 3 risk.  The adjudicator failed to take into account psychological stress.

12.In the hearing on 1/11/2021 before this court, the applicant indicated that she could not explain the delay of filing the leave application.  She did not want to go home.  She was concerned about her son.  She was detained in CIC for 4 months in 2017.

13.The applicant was out of time in filing the leave application by more than 1½ years.  The applicant should have applied for extension of time.  She did not provide any explanation for the delay.  In considering whether there is good reason for the delay, I have considered the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted.  [9]

14.The adjudicator found that the applicant was not truthful.  She did not comply with the law.  He concluded that she fabricated the threat that her brothers would kill her.

15.As to her criticism in her affidavit, I have the following comments:

a. The adjudicator found that the threat from her brothers were fabrications.  The issue of due diligence did not arise.  In any event, she had not reported to the police.  There was no evidence that the police would not take action had they learned of the conduct of “N” and “E”. 

b. The adjudicator had considered the COI listed in the decision of the Director and concluded that there was State protection.

c. Given that there was no injury to a minimum level of severity, the adjudicator was right to reject BOR 3 claim.

d. As to psychological stress, she had never raised this in her statements.  In fact, she had relationship with another man in Hong Kong and had a son.  There was nothing to show she was under stressed mentally.

16.In my view, the evidence above justified the conclusion of the adjudicator.  The factual basis of her claim was not reliable.  I agree with the adjudicator. 

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

Conclusion

18.There is no explanation for the substantial delay.  The intended judicial review is of no merit.  In the circumstances, there is no good reason for extending the time for the leave application.  I also refuse leave for the intended judicial review in relation to the applicant.

Dated the 13^th day of January, 2022

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