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Flores Marites Evangelista v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [Decision On Leave Application]

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date03 June 2020
Neutral Citation[2020] HKCFI 1009
Year2020
Judgement NumberHCAL29/2019
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL29/2019 FLORES MARITES EVANGELISTA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 29/2019

[2020] HKCFI 1009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 29 of 2019

BETWEEN

Flores Marites Evangelista Applicant
and
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office		 Putative Respondent
and
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 documents only; or
consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 19 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

The applicant

2. The applicant is a Filipino national. On 10 November 2012, she arrived at Hong Kong for employment and was granted limited stay until 24 October 2013. On 20 December 2012, she was arrested by the Immigration officer for making a false representation to an Immigration Officer; making a false representation to an Immigration Assistant and furnishing false particulars to registration officer. She was convicted and sentenced to 5 months’ imprisonment. On 29 January 2014, she raised a torture claim.

3. She claimed that if refouled, she would be harmed or killed by the gangsters.

4. The incidents took place as set out below.

a. Since 1997, she had been working in Hong Kong as a domestic helper.

b. Her eldest brother had borrowed 100,000 pesos from the gangsters for gambling. He was nowhere to be found.

c. The gangsters went to her house one evening in 2009. They threatened to kill her mother and her if the money was not paid. They got her text address from her mother.

d. In April 2009, she received text threats from the gangsters. Since April 2010, she had not returned to the Philippines.

e. She had contacts with her sister and mother. They told her not to return to the Philippines lest the gangsters might harm her. In February 2015, her sister told her that the problem still remained. She did not report this matter to police in the Philippines.

The Director’s Decisions

5. The Director considered her application in relation to the following risks:

a. torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6. By Notice of Decision dated 17 February 2015 and Notice of Further Decision dated 15 May 2017, collectively called (“the Director’s Decisions”), the Director refused her claim for the reason that her claim was not substantiated. The Director took the view that there were no substantial grounds to believe that she would be harmed or killed by the gangsters upon her return to the Philippines [31]; state protection [41] and relocation [42] were available to her. Also, she failed to establish a case for BOR 2 risk. See paragraph 6 of the Director’s Further Decision.

The Board’s Decision

7. The applicant appealed to the Board against the Director’s Decisions. She attended a hearing before the Adjudicator on 9 October 2018.

8. By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decisions.

9. The Board considered the applicant’s evidence and was of the view that the applicant’s evidence in relation to the facts in support of her claim was not acceptable. For the reasons it gave, it rejected her evidence on the facts of her case both individually and cumulatively. See...

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