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HCAL552 /2019
[2022] HKCFI 1355
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 552 of 2019
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KONGKAEW PRANEE alias SURIYAJAN PRANEE |
Applicant |
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And |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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And |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
Notification of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
1. Leave to amend The notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 20 March 2018. That was the date of the hearing before the Board, but not the date of its Decision made pursuant to the hearing. The Decision was actually issued and dated 27 July 2018 (the “Decision”). Leave was granted to amend the Form 86 accordingly.
2. The Applicant is a national of Thailand, now aged around 57. She last entered Hong Kong in 1991 to work as a foreign domestic helper, thirty-one years ago. She was permitted to remain as a visitor until 4 October 1995. She overstayed and surrendered to the authorities on 12 October 2007. She admitted to have taken up unapproved employment during May 2005 and September 2007. She was sentenced to 12 months of imprisonment for the offences.
3. On 11 May 2009, she raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That claim was rejected by the Director of Immigration (the “Director”) on 6 February 2014. She did not appeal. That decision became final. Following the implementation of the Unified Screening Mechanism (“USM”), her claim was also assessed on the remaining three grounds, namely, BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3] grounds. By a Notice of Decision dated 24 February 2017 (the “Notice”), the Director rejected her claims.
4. She appealed to the Board against the decision of the Director in the Notice. Her appeal was dismissed by the Board’s Decision dated 27 July 2018. On 26 February 2019, she applied for leave to apply for judicial review of that Decision. She did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.
The Applicant’s case
5. The following account of the Applicant’s case is mainly based on the information in the Torture Claim Form and the Supplementary Claim Form prepared by her with legal assistance and the records of her screening interviews in the presence of her lawyer. In gist, her claim is based on her fear that she will be harmed or killed by her then husband and jailed by the Thai authorities for having joined a Facebook group critical of the Thai King, if she returns to Thailand.
6. The Applicant was born in Chaiyaphum Province, Thailand. She finished primary 4 education and did some farming and child-caring work. She met her then husband in late 1981. They cohabited for a few months in 1982 and then married. They had three children.
7. Starting from 1985, her then husband borrowed loans from the government and his friends and squandered them on himself. The Applicant had to work hard to support her family.
8. In around 1991, her then husband told her to take up overseas employment to earn more money or he would divorce her. The Applicant knew he was seeing another woman at that time. Out of her concerns for the welfare of the three children, she agreed and went to Hong Kong in 1991 to work as a foreign domestic helper.
9. She was required not only to take care of his employer’s family but also to cook for his company of 8 to 10 people. When she complained, her employer dismissed her. She sought employment from other employers in Hong Kong and she kept remitting money back home because her husband told her that the government loans had not yet been paid off.
10. In early 1993, the Applicant expressed her wish to return to Thailand. However, her then husband told her not to as he had married another woman and threatened to harm her, if she returned. The Applicant tried to renew her employment visa but she was unsuccessful. She took up unauthorised employment, which subsequently resulted in her imprisonment.
11. The Applicant met her boyfriend in 1996. They lived together since July 2000. She worked as a fruit vendor in 2003. She surrendered to the authorities in 2007 when her boyfriend discovered that she could not renew her smart identity card. She was sentenced to 12 months’ imprisonment for taking up unauthorised employment.
12. In November 2013, the Applicant contacted her then husband and asked for a divorce. He demanded a sum of 500,000 Baht for agreeing to divorce her. He later reduced his demand to 50,000 Baht, but the Applicant could not pay. Eventually, the Applicant was able to finalize their divorce in March 2014 with the help of the Thai Consulate, her son and her then husband’s cohabitee.
13. Apart from her fear of harm from her husband, the Applicant separately claimed that she feared she would be harmed for having joined a group on Facebook which criticized the King of Thailand. The Applicant said she had not written or said anything criticizing the King. She only posted a comment querying people who criticised the King. Yet, she is still afraid of being jailed because the Bureau of Police and the Thai Embassy had declared that anyone joining the group would be sent to jail and tortured.
The finding of the Board
14. The Board found the Applicant to be a generally credible witness. It accepted her testimony at the hearing that when she expressed her wish to return to Thailand in 1993, her then husband threatened to put a coffin in front of her house and told her that a bullet only cost 5 Baht. It also accepted her evidence about her participation in the Facebook group.
15. The Applicant’s feared harm or death is premised on her then husband’s concern that she would disrupt his current marriage. But, her then husband had never physically assaulted her while she was in Thailand, had never harmed their children, and had now already married another woman. He merely imposed verbal threats. The Applicant’s son and her now ex-husband’s current wife actually facilitated the divorce proceedings. With the issue of the divorce certificate, the Board found her ex-husband had accepted the terms of the divorce, and had re-partnered to get on with his life. By the time of the Decision, the Applicant had never returned to Thailand for over 25 years. In the circumstances, the Board found the Applicant will not face any real risk of any form of harm from her ex-husband now or in the reasonably foreseeable future upon her return to Thailand.
16. Furthermore, based on credible and authoritative Country of Origin Information (“COI”), the Board was satisfied that the Thai authorities had demonstrated its determination to protect women victims of domestic violence. The authorities had continued devoting its efforts to respond to and prevent violence against women since joining UN Women’s newest global initiative, COMMIT.
17. As for her participation in the Facebook group which criticised the King of Thailand, the Board noted that the Applicant may be concerned with a potential prosecution under Article 112 of the criminal code in Thailand. However, on her unequivocal evidence, she had only posted a question in the group querying those who were criticising the King. She had never said anything critical, insulting or defamatory about the King. Her family in Thailand had never been questioned by the authorities for the Applicant’s involvement in the Facebook group. Although the Applicant claimed someone stood outside her home after she had posted the query, the Board did not accept that was caused by her activity on Facebook. Having regard to the COI, the Board did not find there is a real risk that the Applicant would be subject to arrest in Thailand or would face any harm from anyone for having posted the query in the Facebook group.
18. The Board also rejected the Applicant’s claim that she would be mistreated in Thailand for being an asylum seeker. Her fear is based on what she heard from a “big boss” in the Thai Consulate that she would be imprisoned for two years for having applied for non-refoulement protection. Apart from being hearsay, her evidence is vague and ambiguous. The Board was unable to find any credible COI which suggests that Thai authorities mistreats its own citizens who have sought asylum outside Thailand. The Board did not accept that the Applicant would face a real risk of harm of any kind for having sought asylum in Hong Kong.
19. Lastly, while the Board accepted that the Applicant might find it difficult to live in Thailand after staying in Hong Kong for a quarter of a century and that her separation from her boyfriend may cause her emotional pain, it did not accept that these difficulties would give rise to any claim for protection under the USM.
20. The Board concluded that there is no real risk that the Applicant will suffer any form of harm for any of the reasons she has claimed or for any other reasons now or in the foreseeable future. Applying the law applicable to non-refoulement protection under the USM, the Board found she is not entitled to protection under any of the remaining three grounds.
Grounds for judicial review
21. The Applicant did not state her grounds for judicial review in the Form 86 or in her supporting affirmation. In her affirmation, she annexed a copy of the Decision and a two-page statement. In her statement, she repeated her wish to seek non-refoulement protection; her wish to register her marriage with her boyfriend; and her husband’s threat to kill her if she returns to Thailand.
22. She had been invited by the Court via its letter dated 13 December 2021 to advise the Court of her first language, telephone contact number and to file submissions. In response, she lodged a five-page submission written in Thai and some photographs depicting presumably a crime scene with a dismembered body of a victim. The Court arranged a translation of the Thai submission. In the submission, the Applicant recounted her misfortune, her marriage, her employment in Hong Kong, the threat from her then husband, her boyfriend in Hong Kong, the difficulties she had in her application for dependent visa in Hong Kong, and her fear of harm and death upon her return to Thailand. She did not address the issues in a judicial review. She did not suggest what is wrong with the Decision. She made no complaint about errors of law, procedural unfairness and irrationality in the Decision or the non-refoulement proceedings.
Discussion and conclusion
23. The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4].
24. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Thailand. These are finding of facts solely within the province of the Board which the court in an application for judicial review will not interfere save for errors of law, procedural unfairness, or irrationality in the Decision.
25. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant credible and assessed her claim on the basis of the case as she asserted. It was on that basis that the Board found that she has failed to prove her entitlement to non-refoulement protection under any of the three remaining applicable grounds. The Court could not detect any error of law in the Decision. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.
26. For the above reasons, the Court allowed the amendments to the Form 86 as mentioned in paragraph 1 above, but refused leave to apply for judicial review.
Dated 12th day of May 2022
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(Mike Mak)
for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 12/5/2022
KONGKAEW PRANEE alias SURIYAJAN PRANEE
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/5/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6477/17/3/132/TH19
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3186/16
(formerly RBCZ 2002232/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[2] Risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[3] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[4] [2018] HKCA 524 at [14(1)]
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