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62-year-old torture claimant fails bid to stop repatriation

22 January 2023

By The SUN

High Court says applicant failed to show a real risk of her being seriously harmed or killed

A 62-year-old Filipina who came to Hong Kong as a tourist 16 years ago and overstayed, failed in her bid to get the High Court to give her more time to appeal the decision of the Torture Claims Appeal Board denying her right to remain in Hong Kong.

In his order issued on Thursday, Jan 19, Deputy High Court Judge Bruno Chan noted that applicant Emelita Arista was already five months late in filing the application for leave to appeal the decision.

The delay, said the Judge, must be considered “very substantial and inordinate,” apart from the fact that Arista did not provide an explanation as to why she failed to appeal against the TCAB’s decision on time.


In any case, Judge Chan said he did not find merit in Arista’s intended application for a Judicial review as she had failed to cite any proper ground for it.

“…as such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either,” said the Judge.

He also stressed what the Court of Appeal has repeatedly said, that a judicial review does not serve as a rehearing of a refoulement claim, during which the applicant was given sufficient chance to present his or her case.

Pindutin para sa detalye

In such cases, the evaluation or the risk or harm to the claimant is primarily a matter for the Immigration Director and the Board, said the judge.

Arista, who was born in Manila and raised in Ilocos Sur, worked in Hong Kong as a foreign domestic helper from 1999 to 2003.

During this time, she heard of a land dispute between her father and a cousin, Ruel. She decided to confront Ruel about this during a vacation in the Philippines in the 2003, as a result of which he made threats against her.


After her father passed away in 2006, Ruel threatened to kill her if she did not surrender her part in the disputed land to him.

Fearing for her life, Arista fled to Manila and then to Hong Kong where she overstayed. She was arrested by the police in 2017, or more than 10 years later.

She subsequently filed a non-refoulement claim for protection on July 13, 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.



On Aug 9, 2017 the Director of Immigration rejected he applicant’s claim, saying the level of risk of harm from Ruel was low, and that there was no reliable evidence of any real intention on his part to seriously harm or kill Arista.

In any event, said the Director, the dispute was a private matter among family members and there was no indication that the applicant would not be given state or police protection if she returned to the Philippines.

On the contrary, the Country of Origin Information (“COI”) on the Philippines shows that with its large population of more than 100 million spread across a vast territory of more than 300,000 square kilometers, it would not be difficult for the applicant to move to other parts of the country where it would be impossible for Ruel to locate her.


On Aug 25, 2017 she appealed the Director’s decision to the TCAB. Just over a  year later, or on Jul 31, 2018, the Board dismissed the appeal and affirmed the Director’s decision.

Arista did not take any further action until Apr 1, 2019 when she filed her Form 86 for leave to apply for judicial review of the Board’s decision. However, she cited no ground but merely attached a copy of the decision.

By then, she was already “seriously out of time with her application,” said the judge.

According to Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review must be made within three months from the day when grounds for the application first arose, unless the court finds reasonable ground to extend the period.

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