Pascal Beatrice Simon v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL358/2017

[2018] HKCFI 107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 358 of 2017

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 Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Tanzanian national who 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 another offence.  She was sentenced to imprisonment for four weeks.  On 29 May 2011 she lodged a non-refoulement protection claim.  The Director of Immigration (“the Director”) rejected her claim on 15 July 2015 and 3 March 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 2 June 2017.

2.The applicant filed a notice of application for leave to apply for judicial review on 5 June 2017 and requested an oral hearing which was set down for 26 October 2017.  She applied for legal aid but it was refused and appeared in person.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full and in detail in their decisions, therefore I only intend to summarise it here.

3.The applicant was born in 1978, received primary education only and is separated from her husband she married in 2000 by whom she has three daughters who now live with her sister in Tanzania.  In 2009 she discovered her husband was having an affair, he became very abusive and violent towards her so she decided to end her marriage and leave him.  Her husband refused to accept this fact and swore to kill her if he saw her again.  The basis of her claim is that if she were to return to Tanzania her husband would cause her serious harm and kill her.

4.Her evidence was that after she discovered his affair with another woman he became physically abusive towards her and sometimes even hit their children.  He sometimes hit with a stick and his belt. She recalled an incident when he was drunk and grabbed a knife and pointed it at her.  The most serious injuries she suffered were bruises.  She never saw a doctor for her injuries nor did she ever make a police report because she felt embarrassed.  The only person she told was her husband’s sister.

5.Two weeks before she came to Hong Kong she told her husband that she was leaving him but he would not accept it.  He insisted that she remain married to him but that he maintained his relationship with his girlfriend.  She refused to accept the situation.  She took her children to her sisters.  He came looking for her but she would hide at a girlfriend’s home when he came.  Her friend advised her to leave the country to relax and took her to Hong Kong in April 2010 on an all-expenses-paid trip.  She returned in November 2010 when her Visa ran out.

6.Not long after she returned, her husband telephoned and said to her; in her non‑refoulement claim form he threatened to kill her if she did not come back to him.  However, in her screening interview she said he said to her “please come and see me and we can talk” which is very different to a death threat.  In any event, after she returned, her husband did come to her sister’s home but she managed to avoid him.  He did use abusive language when he came.  She was frightened to see him and worried he would hurt her and use the children to put pressure on her so she decided to leave Tanzania again for Hong Kong with her girlfriend in May 2011.

7.After she left the country, her sister told her that her husband was still looking for her from time to time and still threatening to kill her if he saw her again.  Internal relocation would be impossible as she did not have the resources to support herself, plus he could easily locate her.

8.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

9.The adjudicator of the TCAB treated the appeal/petition as a rehearing.  The adjudicator correctly set out the law and key legal principles of the four applicable grounds.  He conducted an oral hearing and the applicant confirmed that her evidence she had previously given was true and she had nothing to add.  He considered her evidence and accepted it as the truth.  He went on to apply it to the four grounds and found the applicant had not made out a claim for protection.

10.As far as the persecution risk was concerned, he accepted the petition was a Tanzanian national outside her country of nationality.  However, her fear arose from an abusive, adulterous and controlling husband which was a private and personal dispute.  The applicant had failed to show she had a well-founded fear of being persecuted for a convention reason; she was not at real risk of persecution because of race, religion, nationality, membership of a particular social group or political opinion.  Her persecution risk claim failed.

11.As far as the BOR 3 risk was concerned, there was no evidence that the applicant or any member of her family had suffered any serious harm or serious injury that attained a minimum level of severity.  Her past experiences did not amount to ill-treatment that invoked protection under BOR 3.  The adjudicator found the applicant had not shown that there were substantial grounds for believing that if refouled, there would be a real risk or substantial grounds for believing that she would be subjected to a real risk of torture and CIDTP; her BOR 3 risk claim failed.  Nothing in her evidence suggested she would be exposed to a risk of a violation of her right to life that would constitute a breach of Article 2, her BOR 2 risk claim failed.

12.The adjudicator considered the torture risk and the definition of torture according to section 37U(1) of Cap 115.  The applicant’s past experiences did not amount to torture as defined by that section.  There is no suggestion that the Tanzanian government had any adverse interest in her and that the incidents she described involved any State actor acting in an official capacity.  There were no substantial grounds for believing she would be liable to torture if refouled; her torture risk claim failed.  The adjudicator confirmed the decision of the Director.

13.Although the adjudicator did not have to consider internal relocation he went on to consider that if the applicant had been able to show that she faced a real or genuine risk of harm as claimed, he would have found that such risk was confined to the local area where she had lived. He then went on to consider Country of Origin information relating to population, agriculture, economic activities, safe shelters for victims of violence as well as women in need.  He found that the applicant could relocate elsewhere in Tanzania, other than her local area, without undue hardship.

Leave to apply for judicial review

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.

Dated 26^th day of January 2018.

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