SAE-JAO MOEI-ON v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1822/2018

[2020] HKCFI 1470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1822 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 17 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 15 January 2020.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting Security Bureau and replacing it by the Board as proposed respondent and deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is a Thai national. She came to Hong Kong on 10 April 2006 as a domestic helper and was allowed to stay as such until 3 September 2007. She finished her contract but did not return to her own country. She surrendered herself to the Immigration Department on 6 June 2016. She lodged her non-refoulement claim on 11 September 2016 by written representation.

5.  In support of her claim, she said that if refouled, she feared that she would be harmed or killed by her ex-husband, Boonchok Boonkam and his gangsters because Boonchok always abused her after drinking or taking drugs; he would take revenge on her divorcing him and for reporting to the police about the murder committed by the gangsters.

6.  The applicant claimed that shortly after she had married Boonchok, she discovered that he abused drugs and he drank. He assaulted her after taking drugs or drinking. She got a job of domestic helper in Hong Kong. When she returned to Thailand, he begged her to return to her. She stayed with him but he continued with his abuse on her shortly afterwards. This happened several times. At one stage she was accused of leaking information to police that he and his gangsters had murdered a person, which she did not do. She decided to divorce him. He refused and threatened her that he would kill her if she insisted. He also threatened to kill her if he knew that she had reported the murder case to police. She worked in Hong Kong and asked her mother to sign the divorce paper for her. Her mother did so. Boonchok was angry and said bad words to her mother. Although she finished her contract in Hong Kong, she did not want to go back to Thailand. She lived in her friend’s place in Hong Kong. Later, she surrendered herself to the Immigration Department.

The Director’s Decision

7.  The Director considered her application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     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 (“Refugee Convention”) (“Persecution risk”).

8.  By Notice of Decision dated 20 September 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  The Director found that the level of risk that she might be harmed or killed by Boonchok and his gangsters was low [11]; state protection was available to her [13]; internal relocation was an option open to her [14] and the applicant failed to establish her claim under BOR 2 risk.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision and attended the hearing on 19 June 2018.

10.  By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

11.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it accepted that she had an abusive relationship with Boonchok and for this reason she divorced him. However, it did not accept her evidence of the leaking of information of murder by the gangsters and that Boonchok had threatened her that he would kill her; that Boonchok would know if she returned to Thailand and even if he knew it, he would not be interested in her any longer, the divorce having taken place for about 16 years; that the chance would be quite remote that Boonchok would find her and harm her. Even if Boonchok might have abused her, his acts were not of Convention reasons or the state’s act. The Board had also considered that she could relocate herself in another place in Thailand if she returned and if she feared Boonchok would harm her. See paragraphs 21-49.

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In her affirmation in support of her application, she repeated her allegations that her husband was a dangerous person, who would harm her.

DISCUSSION

14.  The applicant appeared before me. She said that she was treated fairly when she appeared before the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and her friend explained to her the Board’s Decision.

15.  She said that she had no comments on the Board’s Decision.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.  There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

18.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

19.  Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

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

Form CALL-1