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3 Pinoy torture claimants fail to stop their deportation

07 May 2019

By Daisy CL Mandap

The 3 torture cases are the latest in a series of applications or appeals rejected by the High Court 
Three Filipinos seeking to stop their deportation to the Philippines– one a supposed NPA member, another a target of a murderous drug dealer, and a third, an eyewitness to a rape case – all failed to convince the High Court to back their bids to remain in Hong Kong.

Two failed to secure leave or permission to challenge the decision of the Torture Claims Appeal Board denying their non-refoulement (or against being sent back home) claim, while the other lost his appeal against a High Court judge’s decision affirming the same order.
The judgment in the appeal case was handed down on May 2, while the decisions in the two leave to appeal applications were promulgated on Apr 24 and 30.

Among the three failed applicants is Gomer D Galiza, 33, who claimed that he feared the NPA (New People’s Army) in the Philippines because he chose to steal money and flee instead of following an order by his communist superiors to kill someone in 2014. He entered Hong Kong legally on Dec 30, 2014 but overstayed, and was arrested on Feb 11, 2015. He filed for non-refoulement two days after his arrest.
Since then, he has been fighting to remain in Hong Kong, and his latest court application was for leave for judicial review of the TCAB’s decision on Jan 22 this year denying his challenge to the Director of Immigration’s decision against granting his refoulement claim.

The second applicant is Richard O. Garrillo, 39, who claimed he would be harmed or killed by a drug dealer named Noel because he had reported him to the police in the Philippines. He also claimed to fear the police because he believed they were connected with Noel, whose brother is supposedly a high-ranking police officer.
Garrillo, who worked as a domestic helper between January 2001 and January 2002, said that on his return home, he accompanied a cousin who was a drug dependent to the police to report the drug dealer. But instead of arresting Noel, Garrillo said the police arrested and assaulted him and his cousin.

Garrillo said that while he was in Hong Kong on Dec 23, 2002 he learned that his cousin was killed, so fearing for his life back home, he decided to remain until he overstayed his visa on Dec 29 that year.
He remained illegally in Hong Kong for more than six years, until his arrest on Jan 18, 2009. He filed a torture claim the next day.

In August that year he abandoned his claim, saying he had resolved his problem. However, on Dec 18, 2010, he applied for his claim to be reopened, saying Noel had just been released from prison and could harm him if he went back home.
His torture application went to both the Immigration Director and the TCAB, which both denied the claim. On Apr 10 this year, the TCAB refused to grant him leave to appeal its decision.

In the meantime, Garillo claimed his father was murdered by Noel in 2015, while his brother was killed by the police in 2017.

The third case involves Juanito G. Portillo, who failed in his appeal against a decision by Deputy High Court Judge Josiah Lam denying his application for judicial review against the TCAB’s judgment on Feb 27 rejecting his refoulement claim.

Portillo had sought to convince both the Immigration Director and TCAB that he should not be sent back to the Philippines because his life was being threatened by a group of men in his hometown. The appellant said he was an eyewitness to an attempted rape and murder of a girl by these men in 2006, and they could possibly kill him to stop him testifying against them.
In all three cases, the authorities assessed the applicants’ claim based on the grounds allowed under section 3 of the Bill of Rights (BOR), which are risks of persecution and/or torture; and under BOR 2 (section2) risk of a violation to right to life.

Under BOR 3 risk of torture, an applicant must prove that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state. 

BOR 3 “persecution risk”, requires the applicant to establish that he has a well-founded fear that he will face persecution because of race, religion, nationality or membership in a social group or political opinion, if he is expelled and returned to his home state.

Under BOR 2, on the other hand, the applicant must establish that there is a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide.

The Registrar in the two leave applications, and the High Court through Justice Aarif Barma and Judge Godfrey Lam in the appeal case, all decided that the applicants failed to meet the criteria set out in both BOR 3 and BOR 2 risks.

Further, in the appeal case, the judges ruled that appellant Portillo failed to raise any “viable ground” for his case.

In the leave applications, the Registrar ruled that there was no “reasonably arguable basis” for allowing either of the judicial review applications to proceed, and that there was no realistic prospect of success if leave were to be granted.
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