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.
 |
| PINDUTIN PARA SA DETALYE |
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.
 | |
|
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.
 |
| PINDUTIN PARA SA DETALYE |
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.
 |
| BOOK YOUR FLIGHTS NOW! PRESS FOR DETAILS |
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.
 |
| PINDUTIN PARA SA DETALYE |
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.
 |
| PADALA NA! |
 |
.jpg) |
| PRESS FOR DETAILS |
 |
| CALL US! |
