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Fabio Arlyn Timogan And Others v Evan Ruth, Esq., Adjudicator Of The Torture Claims Appeal Board / Non-refoulement Claims Petition Office [Decision On Leave Application]

Judgment Cited authorities 5 Cited in 1 Precedent Map Related
Vincent
Judgment Date15 January 2020
Neutral Citation[2020] HKCFI 79
Year2020
Judgement NumberHCAL442/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL442/2018 FABIO ARLYN TIMOGAN AND OTHERS v. EVAN RUTH, ESQ., ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 442/2018

[2020] HKCFI 79

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 442 of 2018

BETWEEN

Fabio Arlyn Timogan 1st Applicant
Salaudin Rabia 2nd Applicant
Salaudin Faheem 3rd Applicant
and
Evan Ruth, ESQ., Adjudicator
of the Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office		 Putative Respondent
and
The Director of Immigration Putative Interested Party

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 1st Applicant in open court;
the 2nd and 3rd Applicants being absent;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicants:

1. The 1st Applicant (“A1”) is a 41-year-old national of the Philippines who last arrived in Hong Kong on 18 September 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 18 September 2012 or within two weeks of its early termination. On 9 October 2010 her contract was prematurely terminated, but she did not depart and instead overstayed until 15 February 2011 when she surrendered to the Immigration Department and was released on recognizance, during which she subsequently gave birth to her children, the 2nd and 3rd Applicants (“A2” and “A3”) out of wedlock with a Muslim man in Hong Kong, and when a removal order was issued by the Immigration Department against them, A1 then raised a non-refoulement claim for herself and her children on the basis that if they returned to the Philippines they would be harmed or killed by A1’s husband for having an affair with the Muslim man and/or by her family for converting her religion from Christianity to Islam.

2. A1 was born and raised as a Catholic in Tagana-an, Surigao del Norte, the Philippines. After leaving school she worked as a domestic helper, married her husband and gave birth to a daughter.

3. Her husband was a rough man working as a bodyguard and would become abusive to A1 when drunk, and in 1998 their relationship started to deteriorate when her husband was unhappy with A1 returning to work as a domestic helper in Manila, and the situation became worse when A1 went overseas to work as a foreign domestic helper first in Kuwait and later in 2008 in Hong Kong.

4. During her first employment contract in Hong Kong in 2009, A1 met a Muslim man with whom she later formed a relationship and in late 2010 became pregnant which led to the early termination of her employment contract and her subsequent overstay in Hong Kong,during which she gave birth to A2 and A3 respectively in 2011 and 2015 and converted her religion to Islam, and when she received telephone calls from her husband threatening to kill her over her affair with the Muslim man, and when her family also made threats against her for converting her religion to Islam, she raised her non-refoulement claim for protection for herself and her children, for which she completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5. By a Notice of Decision dated 22 July 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6. In his decision the Director took into account all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s husband and/or her family to the Applicants upon their return to the Philippines as low due to the absence or low intensity and frequency of past ill-treatment from them, that all their threats were only verbal with no reliable evidence of any real intention to harm or kill her, that in any event A1’s problems with them were private domestic disputes without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 100 million people spread across a vast territory of more than 298,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move safely with her children...

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