Filipina who made ‘incredible’ torture claim loses judicial review bid

 

The High Court, where appeals against immigration rulings are heard

A Filipina who was earlier jailed for entering Hong Kong on a fake employment contract has failed to convince the Court of Appeal to allow her application for a judicial review of the decision rejecting her claim against non-refoulement, or being sent back home.

Eba M. Gonzales had initially sought help from the High Court to challenge the decision by the Director of Immigration and the Torture Claims Adjudication Board rejecting her application against non-refoulement. She was unsuccessful.

Gonzales, who had spent four months in jail in 2019 for making false statements to an Immigration officer, had cited as reason alleged threats made against her by relatives of “Alex,” a man who was killed shortly after she lent him money. The relatives reportedly accused her of being responsible for Alex’s death.

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In dismissing her application, the Board said the applicant was evasive and made claims that were “inherently improbable and her account, incredible.

Among her questionable statements were that she did not bother to check Alex’s background before she lent him money, nor did she ask the police for help when she began getting threats from his relatives following his death. 

Gonzales also said it was public knowledge that Alex died of overdose, prompting the court to ask why then would his relatives accuse her of killing him, and why they issued death threats against her. 

The Board also asked why the applicant did not show any interest in finding out more about Alex’s death so she could vindicate herself.

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“The Board therefore concluded that “it is inherently improbable that the Applicant had been threatened with death by Alex’s family and that her allegation about the threats is an exaggeration.”

Court records show that Gonzales had worked in Hong Kong as a foreign domestic helper on and off. She last entered Hong Kong on Nov 12, 2016 and was subsequently found to have entered into a false employment contract for which she was jailed for four months.

Following her release from jail, she raised a non-refoulement claim on Aug 6, 2019 and cited as ground the alleged threats to her life by Alex’s family.

On Nov 5, 2019 the Director dismissed the applicant’s non refoulement claim on all applicable grounds, including torture and persecution risks.

Gonzales appealed the decision to the TCAB and on Nov 11, 2020 the Board decided to dismiss the appeal and confirm the Director’s Decision. She then turned to the High Court to seek leave to apply for a judicial review of those decisions.

But in her decision handed down on Nov 28  last year, Judge Esther To rejected Gonzales’ review bid, saying the TCAB had correctly set out the law and key legal principles involved in the case.

The Board’s main finding was that Gonzales was “incredible”, or not did not give factual statements, thus she failed to prove the threat or risk of harm to herself.

Alternatively, the judge said the Board found that the applicant’s feared ill treatment does not fall within any of the four applicable grounds for state protection. Even if it does, she could easily relocate to another place in the Philippines.

CA Judges Thomas Au and Anderson Chow found no reason to overrule the lower court’s judgment, saying they could not detect any error of law or procedural unfairness in its primary or alternative decision.

“Basically the applicant failed to discharge her burden of proving her fears and risks. The decision is utterly without fault. The proposed judicial review has no realistic prospect of success,” said the appeal justices. 

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