 |
| The High Court upheld the Board's decision denying the Filipina's claim of possible torture |
A Filipina who overstayed her visa after first
working as a domestic helper in Hong Kong and China, and then coming back as a
visitor, lost her bid to challenge the decision of the Immigration Director and
the Torture Claims Adjudication rejecting her application against being sent
back home.
In her application for a judicial review, Sheryll
Seva Vicente, 37 years old, alleged that the TCAB and the Director were wrong in denying her
claim against non-refoulement on the basis that if sent back, she would be
harmed by her estranged husband who is affiliated with the armed rebel group,
the New People’s Army.
Vicente, now 37 years old, first came to Hong Kong on Aug
17, 2010 to work as a domestic helper, but was terminated only after two
months. She left Hong Kong for the Mainland but returned to Hong Kong twice to
take up a job as a domestic helper, ultimately leading to a third termination
on May 4, 2012.
She duly left Hong Kong for Macau on Jul 10, 2012
and re-entered Hong Kong on Jul 27 that year as a visitor. She was allowed to
remain until Aug. 3, 2012 but overstayed until her surrender to authorities on
Jul 26, 2017.
Vicente claimed that she is a Catholic but due
to a family arrangement, she was made to wed her Muslim husband in 2006. They
had two children and lived together in Sultan Kudarat.
She further claimed that her husband was abusive
and would often beat her up when he was drunk. One day in November 2006, while she
was pregnant, her husband allegedly beat her up so badly that she suffered
bruises and scratches which took several months to heal.
Between then and until February 2010 he
allegedly attacked her about two to three times a week and even sexually abused
her. When she asked for a separation, her husband reportedly pointed both a
pistol and a rifle at her and threatened to kill her, her parents and their
children.
Vicente said she left for Manila in February
2010 to apply for a job abroad and in August of the same year, managed to leave
for Hong Kong.
Even after her departure she said her husband
continued to harass her parents’ family and even threatened her through her
mother, with the latest being in October 2018.
Vicente said she did not divorce her husband
because of her Catholic faith and that even if she tried to separate from him
and relocated within the country he would still be able to track her through
his NPA network.
Further, she said she did not believe there was
adequate state protection in the Philippines, particularly for female victims
of domestic violence. She also fears for the safety of her parents’ family and
children if she made a report to local authorities.
On Jun 13, 2018, she applied for non-refoulement
based on these grounds. Her claim was duly processed based on the grounds of
torture, persecution, and possible violation of her rights under Hong Kong’s
Bill of Rights. But on Nov. 1, 2018, the Director dismissed her
claim and this was affirmed by the TCAB on May 30, 2019.
According to the Board, Vicente gave statements
that “that kept evolving in the course of her testimony.” As an example, she
gave two different versions of how she got to Manila to apply for overseas work
during her written application and screening application.
She was also found to have given evasive and
unconvincing answers as to how she managed to survive living in Hong Kong for
seven years without a job, and why she sued her employment agency in 2012 which
she cited as ground for applying for a visa extension.
Most significantly, the Board pointed out that when
asked why she did not immediately surrender to the authorities when she became
an overstayer in 2012 and only asked for protection in 2017, she said it was because the Immigration Department did not give her such
an advice.
“The Board did not accept that as a reasonable
explanation and considered her failure to promptly seek protection as a factor
damaging her credibility,” said the High Court in its judgment.
Neither did the Board believe her other claims
about marrying a Muslim man despite remaining a devout Catholic herself, and
while she allowed her children to be raised as Muslims.
Vicente was found to have given vague responses
about her supposedly Muslim marriage, and how her husband practiced Islam in
his daily life.
“The Board found her evidence on this issue
“was, at best, general and simplistic and did not reveal…an intimate
understand[ing] of daily Islamic practices which might be expected from a woman
who shared her daily married life with a Muslim man for around four years,”
said the judgment.
She also failed to provide convincing proof of
her husband’s alleged connection with the NPA, merely citing as basis a locked
box in his possession which she said contained several mobile phones, wiring
and guns.
It was only when the Board told her that those
items did not by themselves link her husband to the NPA that she added that she
heard his affiliation to the rebel group from men talking in their house. When
pressed further, she said the men were talking about planting a bomb.
“The Board considered she was making up her
evidence as she went along,” said the judgment.
Having disregarded her claim of alleged threats
from her husband, the Board decided to uphold the Director’s decision denying
her claim against non-refoulement.
The High Court said that having found no errors
of law, procedural unfairness or unreasonableness in the Board and Director’s
decisions denying Vicente’s application, it could only uphold those judgments.
“ The function of the court in judicial
review is not to re-assess the non-refoulement claims afresh. The primary
decision-makers in a claim for non-refoulement are the Director and the Board.
They alone assess the evidence and find facts including those relating to the
matters allegedly giving rise to the non-refoulement claim, risk of harm,
availability of state protection and viability of internal relocation, said the
Court.
.jpg)
