Yuyun v. Torture Claims Appeal Board and Another

HCAL 43/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 43 OF 2016

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D E C I S I O N

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Introduction

1.This is an application for leave to apply for judicial review.  The applicant seeks thereby to challenge the decisions respectively dated:

(a)   17 October 2014 of the Director of Immigration (“the Director”);

(b)   12 February 2016 of the Torture Claims Appeal Board/Non-Refoulment Claims Petition Office (“the Adjudicator”),

which in effect rejected her non-refoulment claim (collectively “the challenged decisions”).

2.The applicant is an Indonesian national who came to Hong Kong in 2006 to work as a domestic helper.  She was arrested for suspected burglary in December 2013 and was convicted of burglary in April 2014.  Her employment was terminated.  During her period of remand in custody for the said offence, she raised a torture claim in February 2014.

The challenged decisions

3.The applicant’s non-refoulment claim was treated by the Director as having been based on 3 grounds:

(1)   the risk of torture (based on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) (also Part VIIC, Immigration Ordinance (Cap 115));

(2)   the risk of “cruel, inhuman or degrading treatment or punishment” (based on Art 3, s 8, Hong Kong Bill of Rights Ordinance (Cap 383) (and Art 7, International Covenant on Civil and Political Rights));

(3)   the risk of persecution (based on Art 33, 1951 Convention relating to the Status of Refugees).

4.The challenged decisions were based on the conclusions reached by the Director and the Adjudicator essentially that:

(a)   the threats to kill the applicant were regarded as not real;

(b)   the intensity and frequency of the assaults (by the applicant’s husband) was regarded as not amounting to torture;

(c)   the said assaults did not amount to “severe ill-treatment”;

(d)   there was no genuine and substantial risk of such ill-treatment;

(e)   the reason for the said assaults was domestic/private and did not fall within the reasons set out in the 1951 Convention;

(f)    the applicant had not reported the incidents to the Indonesian police, and her fear that no enforcement action would be taken was her perception only;

(g)   the concept of “extended state acquiescence” did not apply to the applicant’s case;

(h)   internal relocation was available and reasonable.

This application

5.The applicant’s affirmation puts forth the following grounds:

(1)   against the Adjudicator for failing to consider the concept of “extended state acquiescence”;

(2)   against the Adjudicator for failing to hold a hearing before rejecting her claim;

(3)   against the challenged decisions for failing to conduct sufficient (and independent) inquiries into the relevant country of origin conditions;

(4)   against the challenged decisions for failing to give reasons why the parts of the country of origin information reports (“COI reports”) adverse to her claim should not be preferred over the parts of the COI reports favourable to her claim;

(5)   against the challenged decisions for being selective in their approach when considering the COI reports;

(6)   against the challenged decisions for failing to consider the psychological impact on her because of the incidents she complained about;

(7)   against the challenged decisions for considering irrelevant matters including her failure to seek medical treatment.

Sub-para (1) to (6) above have in effect been repeated in a document handed in on 19 August 2016 (albeit set out in more legalistic language).

6.To sum up, I find none of the above grounds to be arguable.

7.Para 5(1) and (6) above are factually wrong.  As has been summarized above, the challenged decisions have considered those matters (para 4(a) and (d), and 4(f) and (g)).

8.Para 5(2) above is unmeritorious because the Adjudicator has explained why a hearing was not held (the applicant’s claim was rejected based on her factual assertions being accepted to be true, and the Adjudicator having been satisfied that there was no unfairness for not holding a hearing).  There is otherwise no error on the fact of the record as regards both the decision and the reasons therefore.

9.Para 5(3) above fails to state what would constitute “sufficient independent inquiries” and how the inquiries would affect the outcome of the applicant’s claim.  The court of appeal has pointed out in TK v Michael C Jenkins [2013] 1 HKC 526 (at para 19 to 27 thereof), a balanced view has to be taken as regards the notion of “procedural fairness” in this regard (and the applicant cannot “simply sit back” and merely asserts that more ought have been done).

10.The challenged decisions, as the fact-finding tribunals, were entitled to evaluate the factual materials placed before them. Those materials would include the COI reports.  The evaluation has not been shown to be unreasonable or against the overall weight of the evidence.  Para 5(4) above therefore has not merit.

11.Similarly, the fact that a fact-finding tribunal has placed greater weight on some of the factual materials and less weight on other materials is a process within the tribunal’s power to do so.  This cannot properly be viewed as being selective.  An obvious example of being selective is this: in order to support its conclusion, a tribunal arbitrarily removes from its deliberation unsatisfactory part(s) of a single matter said to be supportive of its conclusion.  Here the challenged decisions were faced with different aspects of the COI reports; some parts were favourable to the applicant’s claim while others were unfavourable.  In such a case, the tribunal is bound to undertake an evaluation (see para 10 above).  Para 5(5) above therefore has no substance either.

12.Finally, the applicant has not demonstrated where the challenged decisions have erred in relation to the matters summarized in para 4(b), (c), (e) or (h) above (para 5(7) above appears to have been considered in the challenged decisions when deliberating on para 4(a) to (c) above).  In fact, in view of the applicant’s assault complaints, the challenged decisions’ conclusions summarized in para 4(b), (c) and (e) above were well justified.

13.As regards para 4(h) above, the applicant further disclosed (when enquired about this) that her mother had relocated to another place to live with her sister.  The applicant’s husband (who was the subject of complaint of assaults) has no idea where her mother is now residing, and could only reach her mother through her mother’s mobile phone (to ask about the applicant’s whereabouts).  This is a further reason for concluding there is no substance in the applicant’s complaint against the rejection of her claim.

Conclusion

14.This application for leave is refused.

The applicant appeared in person