Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Re Dela Cruz Eileen Tolentino

Judgment Cited authorities 2 Cited in 1 Precedent Map Related
Vincent
Judgment Date29 December 2020
Neutral Citation[2020] HKCA 1071
Judgement NumberCACV245/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV245/2020 RE DELA CRUZ EILEEN TOLENTINO

CACV 245/2020

[2020] HKCA 1071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 245 OF 2020

(ON APPEAL FROM HCAL NO 1579 OF 2018)

______________________________

RE: DELA CRUZ EILEEN TOLENTINO Applicant

______________________________

Before: Hon Yeung VP and Toh J in Court
Date of Hearing: 22 December 2020
Date of Judgment: 29 December 2020

__________________

J U D G M E N T

__________________

Hon Toh J (giving the Judgment of the Court):

Introduction

1. This is an appeal against the decision of Campbell-Moffat J (“the Judge”) on 23 June 2020 in HCAL 1579/2018 refusing leave to the applicant to apply for judicial review. By that decision, the Judge refused her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 27 July 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 24 January 2018.

Background

2. The applicant is a national of Philippines. She came to Hong Kong legally as a foreign domestic helper on numerous occasions between 2009 and 2014. Her last contract of employment was terminated on 27 November 2014 and thereafter she overstayed. She surrendered to the police on 27 January 2015 and was convicted of breach of condition of stay on 31 January 2015 and was given two weeks’ imprisonment suspended for one year. The applicant submitted a non‑refoulement claim by way of written representation on 2 February 2015 on the basis that if she were to return to Philippines, she would be harmed or even killed by her creditor as she failed to repay her loan. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1333.

3. By the Notice of Decision dated 24 January 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4. The applicant appealed to the Torture Claims Appeal Board (“the Board”). After an oral hearing on 11 May 2018, the Board dismissed the appeal on 27 July 2018. In its decision, the Board was convinced that the evidence of the applicant was truthful and consistent and accepted her version of events that she borrowed a loan to pay for her father’s medical treatment and hospitalization in or about 2009. The Board also accepted that she was unable to repay her loan and was assaulted by her creditor before she fled to Hong Kong. Yet, on the basis of the evidence, the dispute the applicant had with her creditor was private in nature without state or official instigation and the ill-treatment did not reach a minimum level of severity that amounted to torture. Further, with the passage of time, the risk of harm upon her return was considered to be remote. In any event, internal relocation is a viable option and would further eliminate the risk. For the aforesaid reasons, the appeal was rejected on all applicable grounds.

The Judge’s decision

5. On 9 August 2018, the applicant filed her Form 86 to apply for leave for judicial review in respect of the decision of the Board. The applicant did not provide any grounds of review and only stated that she wished to stay in Hong Kong in order to obtain medical treatment for her son, who is a Hong Kong resident and who has a father who lives here. She has not complained of any specific procedural irregularity, unfairness or unreasonableness.

6. The application was disposed with on paper and by the CALL-1 Form of 23 June 2020, the application was refused. The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons and findings at [11] – [12] of the CALL-1 Form:

“11. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have looked in particular inter alia, into the issue of her son’s health, but I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. The applicant’s case was wholly without merit. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately. He was sympathetic to her position but he was required to consider her application within the confines of the applicable regime principles. There is no criticism of his determination, which was open to him on the...

To continue reading

Request your trial
1 cases
  • Re Dela Cruz Eileen Tolentino
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 26 March 2021
    ...(Peter Cheung) Justice of Appeal (Esther Toh) Judge of the Court of First Instance The applicant, unrepresented, acting in person [1] [2020] HKCA 1071 [2] (2004) 7 HKCFAR 187 [3] [2013] 1 HKC 526 ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT