Case Document

100%Judiciary

HCAL 370/2022

[2022] HKCFI 2391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 370 of 2022

BETWEEN
	Tonked Vilaiwan	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	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:

consideration of documents only; or

consideration of documents and the Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

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 5 May 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing for her. However, she was absent without prior notice to the Court. I decided to deal with her application on paper.

The applicant

3.The applicant is a national of Thailand. She entered Hong Kong on 29 July 2018 as a foreign domestic helper and was permitted to stay until 8 September 2019. On 8 September 2019, she was intercepted at the airport by the immigration officer for using the bogus foreign domestic helper contracts. She was convicted of the offence of “causing to be made a false statement for the purpose of obtaining an entry permit” and sentenced to 9-month imprisonment. On 12 October 2021, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her ex-husband Charoensuk Sanae (“Sanae”) as she had a new boyfriend in Hong Kong.

4.According to the applicant, she was involved in the romantic relationship with Sanae in 2011. Since 2012, Sanae had been abusing her physically whenever they had arguments. However, they still held a wedding ceremony on 14 February 2013. Nevertheless, the parties did not register the marriage. In 2014, their relationship deteriorated after the applicant found out about Sanae’s affairs. The applicant thus decided to end this relationship. On 10 April 2015, when she was packing her belongings, Sanae attempted to stop her by pushing her and trying to tie her up. He also held a fruit knife and threatened to kill her if she left him. The applicant sustained minor injuries. Her report to the police did not lead to Sanae’s arrest. Thereafter, the applicant stayed in her family’s house. Sanae would follow her and called her with threatening messages if she refused to reconcile. The applicant decided to obtain overseas employment. In June 2015, Sanae found out about her new relationship and threatened to take revenge. On two occasions in December 2017 and July 2018 respectively, the applicant returned to Thailand but did not encounter Sanae. Feared that she would still face a risk of harm from Sanae, the applicant decided to seek international protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 12 January 2022 by the Director (the “Director’s Decision”).

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

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

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

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) her past behaviors suggested that the alleged harm was not imminent or substantial [13]; (iii) the perceived harms, if any, were localized [14]; (iv) state protection would be available to her [15]-[21]; and (v) internal relocation was a viable alternative [22]-[26].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 29 April 2022, the Board conducted an oral hearing for her appeal, during which she clarified her claim [46].

8.Having considered the evidence, the Board made the following findings. First, the Board noted that, although the applicant claimed to be slapped by Sanae during their relationship, she had not sustained injuries and never reported to the police. Secondly, it found that, in the alleged assault incident, Sanae was merely acting in a spur of anger and did not intend to cause serious harm or even kill the applicant. Thirdly, the applicant had not seen Sanae since May 2015 and the alleged threats from Sanae were based on hearsay information. Fourthly, Sanae never attempted to locate her and state protection would be available to her if she sought the assistances [47]-[60]. As a result, the Board rejected the applicant’s claim on Torture risk. For the same reasons, the Board also rejected her claim on the remaining grounds. In any event, the Board found that internal relocation was a viable alternative [68]-[69].

9.In these circumstances, the applicant’s appeal was dismissed.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 on 23 May 2022 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application and a statement attached to Form 86, the applicant set out her grounds, which I shall summarize below.

(1)  The Director was wrong in his decision as he did not give sufficient weight to the issue of state acquiescence as she was tortured by the enforcement agencies and the public officials had failed to provide protection to her.

(2)  The adjudicator was unreasonable and procedurally unfair in that he relied too much on the country of origin information (“COI”), but failed to take into account her personal situations. Both the Director and the Board failed to give sufficient weight to the COI, which favoured her application.

(3)  The adjudicator was procedurally improper and unfair as he did not accept her explanations and required her to respond questions that she was not in a position to answer. He failed to take into account the nexus of political parties and official corruption, which caused persecution.

(4)  The Director failed to take into account the corruption and incompetency of the administration of her country and the adjudicator should have allowed her appeal, which he failed to do.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.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.”

15.As to the grounds as set out in paragraph 11 above, grounds (1), (2) and (4) are her bare assertions or opinions without any evidence in support. Ground (3) does not sustain as the Board had given its reasons as summarized in paragraph 8 above. The applicant has not been able to identify those questions which she considered the Board was unreasonable to raise with her. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

16.The Court does not find any fault with the Board in reaching the Board’s Decision.

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

CONCLUSION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 4^th day of August 2022

(Chung Lai Fan, Christine)
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 the Applicant’s solicitors must:
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)).		Sent to the Applicant on 4 August 2022 Tonked Vilaiwan Applicant’s ref. no: Nil.		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 4 August 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 19801/22/1/202/TH127 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2176/21 (Formerly RBCZ 5000326/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)