Torture claim of married Pinay who had affair in HK nixed

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High Court

THE High Court rejected an appeal filed by a Filipino woman who sought to stay in Hong Kong after having an extramarital affair here and giving birth to a son for fear that her husband in the Philippines would harm her and the child.

In a decision, High Court Judge Queeny Au-Yeung said the grounds cited by MAM to seek a  review of the decision of the director of the Immigration Department, and the Torture Claims Appeal Board (TCAB) rejecting her application were unsubstantial.

MAM said that before leaving the Philippines in 2006 to work as a domestic helper in Singapore, and then coming to Hong Kong in 2010, she was frequently assaulted by her husband, SMM

She said she married her husband in 2001 because her mother could not pay a loan and interest the latter incurred from SMM.

MAM and her husband had lived in Cordon, Isabela. They have two children, but the applicant said she had been frequently assaulted by her husband.

Since 2002, MAMsaid she had been allegedly assaulted by SMM when he was drunk and after taking drugs as he suspected her of infidelity or when she refused to assist in his illicit drug business. She said the assaults occurred about four times a month.

In mid-2006, MAM had stayed with her children and her mother in her sister’s place in another town in the province.

In December 2010, she went to Singapore to work as a domestic helper without telling her husband.

However, her husband took custody of her children. After some time, she stopped sending money to her husband after finding out that he was neglecting their children.

Her husband then allegedly started harassing her family and threatened to kill her when she returned to the Philippines.

“At times he scolded her mother and brother and even pointed a gun at them on one occasion threatening to kill them when they refused to tell him the applicant’s whereabouts,” the decision said.

It was also alleged that her family suggested that she stay away from their place for fear that her husband would harm her.

In August 2010, MAM started working as a domestic helper in Hong Kong. Since then, her children had been staying with her mother.

However, her employment contracts had been prematurely terminated twice – on Sept. 21, 2010 and on Jan. 16, 2012.

MAM was permitted to stay as a visitor until March 21, 2012, but she overstayed and was arrested by the police on May 16, 2012. She was subsequently convicted of the charge and was given a suspended sentence.

In June that year, she raised her non-refoulement claim, relying on the grounds of torture, and cruel, inhuman or degrading treatment or punishment, and the risk of persecution.

MAM said her family told her that her husband was still asking them for her whereabouts. She also alleged that he turned their matrimonial home into a meeting place for his illegal business.

In 2014, MAM had an affair with a married man in Hong Kong and she gave birth to their son in the same year.

In October 2015, the applicant’s mother told her SMM was still looking for her and that he had learned about her son with a married man in Hong Kong.

“She was told that as [SMM] knew about the son, he would kill him if the applicant were to bring the son back and the applicant was frightened,” the decision said.

After a hearing, a TCAB adjudicator rejected the applicant’s claim, as the adjudicator did not accept the allegation that SMM had ever threated to torture the applicant for  the rest of her life.

“The adjudicator also found that even if the alleged assaults were accepted, they did not either alone or together attain a level of severity warranting non-refoulement protection.

“In fact, after moving out to stay with her sister, the applicant had not even met SMM again, not to mention his having an opportunity of assaulting her or demanding money from her,” Judge Au noted.

The lack of a medical or a police report to support the applicant’s claim was also cited as a reason for the rejection of her application.

In seeking a judicial review of the decision of the ImmD and the TCAB, MAM said they failed to conduct sufficient independent inquiry into the relevant conditions, and that they failed to consider the psychological and physical impact of the facts raised as part of the applicant’s claim including the injuries and abusive language she would be subjected to.

She also added that the adjudicator failed to consider that if they were to return to the Philippines, her and her son might be put in danger.

However, Judge Au held the adjudicator was correct in dismissing the claim of the applicant.

“The Adjudicator has, correctly in my view, set out the legal principles for the three heads of the non-refoulement claim.

“It was quite apparent from hearing the applicant’s oral submission at this hearing that she did not really understand the grounds for seeking leave to apply for judicial review as they were prepared by someone on her behalf,” Judge Au said.

She added that: “It would be fair to say that she just would not accept that she had a ‘weak case’ (her own words). All that she could say [was] that she would  not leave her son behind. She could not particularize further.”

The decision also said MAM “failed to establish her case on the facts.”