RE PASCAL BEATRICE SIMON

CACV 32/2018

[2018] HKCA 290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 32 OF 2018

(ON APPEAL FROM HCAL NO 358 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 26 January 2018 refusing leave to the applicant to apply for judicial review. The applicant is a Tanzanian national. She arrived in Hong Kong on 4 May 2011 and was permitted to remain as a visitor for 90 days. On 22 May 2011 she was arrested by the police for working illegally and for another offence. She was sentenced to imprisonment for 4 weeks. On 29 May 2011 she lodged a non-refoulement protection claim. The claims were based on the alleged threat to her life from her husband. According to the applicant, her husband became abusive after she discovered her husband was having an affair. Her husband threatened to kill her for divorcing him.

2.  The Director decided against the claims on 15 July 2015.  The decision covered BOR 3 risk, persecution risk and torture risk.  By a Further Decision of 3 March 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against her.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 26 April 2017, the Board dismissed the appeals on 2 June 2017 (“Board’s Decision”).

4.  The intended judicial review was in respect of the Board’s Decision.  The Form 86 filed by the applicant on 5 July 2017 did not state any grounds.

5.  In her affirmation of 5 July 2017, she relied on the following grounds in her application for judicial review:

(1) The applicant faces risk from domestic violence which falls within the applicable grounds for non-refoulement protection;

(2) The Board failed to give the applicant sufficient opportunity to clarify elements of her case and the inconsistencies therein;

(3) The Board inappropriately assessed the severe pain and suffering and failed to consider the psychological and physical aspects of torture and CIDTP;

(4) The Board wrongly concluded that the threat from her husband was a domestic and private matter; and

(5) There was insufficient basis to conclude that the applicant would not be subject to torture or CIDTP upon refoulement

6.  After reviewing the materials carefully, the judge refused to grant leave.  After summarizing the facts and background of the case and giving due consideration to the decision of the Board, she gave the following reasons for refusing leave at [14] to [22] of the CALL-1 Form of 26 January 2018:

“ 14. The applicant has sought to judicial review both the Director’s decision as well as the adjudicator’s decision. This is not the right course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing/rehearing/appeal. There is no room for judicial review of the Director’s decision. I have considered the grounds of this application against the decision of the TCAB only.

15. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions in court. I find the adjudicator’s decision to be without fault. He analysed the material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken by him are not made out. I find no substance in the grounds of this application.

16. The first ground and fifth ground allege a failure to take into account the applicant will face risk under all applicable grounds if refouled and allege there was insufficient basis to conclude she would not be subjected to torture or CIDTP. However, there are no particulars to these grounds to consider and therefore no substance. I see no merit in these grounds.

17. The second ground alleges a failure to afford the applicant an opportunity to clarify elements of her case and inconsistencies therein. There is no merit in this ground because it is clear the adjudicator confirmed and relied on her evidence given previously and she elected not to answer questions. She told the adjudicator she had nothing to add. At the conclusion of the hearing, she again said that she had nothing to add. I am satisfied she had ample opportunity to clarify elements of her case during the hearing.

18. The third ground accuses the adjudicator of inappropriate assessment of her severe pain and suffering and a failure to consider “psychological, physical aspects of torture and/or CIDTP”. The adjudicator assessed her bruises and swellings as not reaching the minimum level of severity required; I agree. As for psychological assessment, it was not put forward as part of her case nor do I expect the adjudicator here with such facts to have considered it necessary to have required such medical evidence to assist him. There was no merit in this ground.

19. The fourth ground is rather convoluted but in essence it is a complaint that her claim is assessed to be a domestic and private matter and a reiteration that she will face serious harm from her husband if refouled. Again, there are no particulars and no substance to this ground. The assessment her claim is a domestic and private matter is without fault. The assessment and decision there are no substantial grounds for believing she would be subjected to a real risk of torture or CIDTP is reasonable.

20. The applicant had nothing to add to her affirmation except to say she was very frightened to return home because the problem, her husband was still there and she hoped the court would understand her situation.

21. In conclusion, I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22.       In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

7.  In the notice of appeal of 8 February 2018, the applicant relied on the following grounds of appeal:

(1) The applicant faces real risk upon refoulement to Tanzania

(2) The judge failed to consider the damage to her psychological condition arising out of her fear from her assailant.  She seeks protection on humanitarian grounds.

8.  The applicant agreed by a letter of 8 February 2018 that the appeal can be heard by two judges.

9.  On 23 March 2018, the applicant lodged a set of skeleton submissions repeating the grounds in her affirmation dated 5 July 2017.  She also added a new ground that the Board failed to consider the conditions in Tanzania.  She argued that she will not “get any protection from Tanzanian authority or police”.

10.  We heard the appeal on 15 May 2018.

11.  Having considered the submissions of the applicant in light of the materials before us, we agree with the judge’s observations.

12.  The judge was right in concluding that Grounds 1 and 5 in the applicant’s affirmation have no particulars and in light of the Board’s assessment on lack of risk of harm and persecution they have no merit.

13.  For Ground 2, the applicant was provided with an interpreter at the Board hearing.  She confirmed to the Board that the “information supplied by her in the [Non-refoulement Claim Form] and Interview was correct and she had nothing to add”.  At the conclusion of the hearing, she was asked if she had anything to add.  She only replied that she would be at risk if refouled to Tanzania (§13 Board Decision).  The applicant had full opportunity to clarify her case and any inconsistencies.  The assessment by the Board focused on the risk of harm and persecution rather than any failure on her part to clarify any inconsistencies.  This ground is without merit.

14.  For Ground 3, the Board concluded that the injuries caused by the applicant’s husband did not amount to ill-treatment for the purpose of BOR(3) [§51(B)(b) of Board Decision] or a violation of her rights under BOR 2 [§51(D)(a)].  We agree with the judge that the applicant was unable to show any error committed by the Board in arriving at this conclusion. 

15.  For Ground 4, on the facts as presented by the applicant, the Board was plainly right to conclude that the threat from her husband was a domestic and private matter.  This ground has no merit.

16.  In her written submissions, the applicant also argued that she will not receive protection from Tanzanian authorities and police.  The Board had duly considered the point and noted from COI that the Tanzanian government had recently put in programmes to improve the protection of women’s rights and police performance [§51(A)(e)].  The applicant provided no evidence to the contrary.  We are not persuaded that the Board erred in the assessment in this regard.

17.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

18.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.