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| High Court says an asylum seeker must prove that the risk of torture is state-instigated |
Proving the possibility of torture by someone, including
close family members, is not enough for one to succeed in pursuing a claim for
non-refoulement or against being sent back home, according to the High Court.
There should also be proof that the risk of
torture is inflicted or instigated by a public official or a person acting in
an official capacity.
The ruling was reiterated yesterday, Nov. 23 in
the case of Filipina J.A. Pascua who claimed she was at the risk of being
tortured or killed by her husband’s brothers if she returned home, due to
political rivalry between their families.
In rejecting her application for a judicial
review of the decision by the Torture Claims Appeal Board/ Non-refoulement
Claims Petition Office denying her claim for non-refoulement, the High Court
recorder said private individuals were behind the possible torture she could be
subjected to, meaning she has the option of seeking protection from the
Philippine government.
Alternatively, she could avoid the risk of harm
by relocating to cities like Manila or Cebu, said the High Court.
Pascua was a former domestic worker in Hong Kong
who came as a visitor the last time she entered on January 10, 2010 and did not
leave after 14 days. On September 20, 2017, or more than seven years after
overstaying her visa, she surrendered to Immigration authorities.
On Oct 26, 2017 she filed a claim for
non-refoulement, saying that if she was sent back home, she would be kidnapped,
tortured, raped or even killed by her husband’s brothers.
The applicant said that her mother was elected
as barangay captain for Lakas-CMD party in 1994. In 2003 Pascua got pregnant
with a man whose father was running for the same post as a candidate of the
rival Liberal Party.
While living with her husband, the applicant
said she kept being threatened by her husband’s five brothers who wanted her to
tell her mother to step down from her post. She told her husband about the
harassments but he did not do anything to stop them so she came to Hong Kong to
work as a domestic helper.
On Dec. 11, 2009 the applicant returned to the
Philippines but had a conflict with her husband after she refused to have
sexual relationship with him. She returned to Hong Kong for a second time, and
felt compelled to seek protection in Hong Kong, claiming that the harassments
from her husband’s family continued.
After hearing her testimony about her torture
claim, the Board accepted her accounts of the past events. In particular, the
Board accepted the applicant’s evidence on her family’s background, including
her mother’s position, her husband’s family background, the conflicts between
their families, and even the brothers’ harassments of her.
However, the Board decided to affirm the Immigration
Director’s decision that the claimed risk of harm was low, that state
protection was available to her, as well as internal relocation in the
Philippines.
As a result, Pascua asked for a judicial review
of the Board’s decision, claiming it was unfair, unreasonable or irrational as
it was based on procedural errors or unfairness.
But the High Court rejected these claims, saying
that while the Board accepted the applicant’s claims as facts, it nevertheless ruled
that she was unable to prove that she would be subject to real risks under the Refugee
Convention and the provisions of the Immigration and Bill of Rights Ordinance
if she returned to the Philippines.
