RE JKF

CACV 103/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 103 OF 2014

(ON APPEAL FROM HCAL NO. 42 OF 2013)

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BETWEEN

	JKF	Applicant
	IN THE MATTER of an application for leave to apply for judicial review under Order 53, rule 3 of the Rules of the High Court (Cap. 4A)
	and
	IN THE MATTER of a claim under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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Before : Hon Lam VP, Kwan JA and Au J in Court

Date of Hearing : 14 November 2014

Date of Judgment : 14 November 2014

Date of Reasons for Judgment : 25 November 2014

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REASONS FOR JUDGMENT

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

1.  This is an appeal against the refusal of McWalters J (as he then was) on 25 April 2014 to grant leave to the Applicant to apply for judicial review. At the hearing of the appeal, we allowed the appeal and granted leave to her. Here are our reasons.

2.  The Applicant’s case is that she was subject to ill-treatments and abuses by her husband in her home country Sri Lanka which the learned judge regarded as arguably amounting to torture (see para 3 of his judgment).  She made a claim under the Convention Against Torture and the claim was refused by the Director of Immigration and the Adjudicator.  She sought leave to apply for judicial review against those decisions.

3.  She relied on the extended concept of State acquiescence to support her application for leave.  The judge accepted the Director and the Adjudicator did not consider that concept in coming to their decisions.  However, the judge concluded that the contention that such concept should apply in the present case is unarguable.  That was the reason why he refused to grant leave.

4.  As has been said in TK v Michael Jenkins HCAL 126 of 2010, 21 October 2011, paras 61 and 64, though the court in a judicial review would subject to a decision of this nature to anxious scrutiny and apply an enhanced Wednesbury approach in examining the same, the primary decision makers are still the Director and the Adjudicator.  Thus, assessment of the extended concept of State acquiescence and the subsidiary questions which may arise on the facts of each case under that concept should primarily be undertaken by the primary decision makers.  When the primary decision makers did not conduct the necessary assessment or did not make all the necessary inquiry relevant to such assessment, or conduct an oral hearing which the case required, the court should not readily place itself in their positions to undertake such exercise on its own.  It is only in very clear cases that the court should reject an application for judicial review on the basis that the final outcome is inevitable, see Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679 at [64]; Liu Pik Han v Hong KongFederation of Insurers Appeals Tribunal  [2005] 3 HKC 242 at [47].

5.  In the present case, on the materials before us, we are of the view that it is reasonably arguable that the Adjudicator had not properly applied the concept of extended acquiescence.  Though he referred to the lack of report by the Applicant to the police (which is no doubt a relevant matter in the overall assessment of State acquiescence), as illustrated by the facts of TK v Michael Jenkins, supra, the lack of such report is not conclusive.  The adjudicator then rejected the Applicant’s concern about the ineffectiveness of making such a report as “speculations”.  Though there is an answer in the record of interview of the Applicant (Q45 and A45) which could be so construed, in light of ST v Betty Kwan [2014] 4 HKLRD 277, it is reasonably arguable that there should be further probing along the lines suggested by Mr Remedios at the hearing before us.

6.  Further, it is also reasonably arguable that what Mr Remedios criticised as selective use of country of origin information had tainted the assessment by the Adjudicator, see Re MI CACV 69 of 2014, 26 Sept 2014, paras 39 and 40.

7.  The judge basically held against the Applicant on the ground that notwithstanding the shortcomings in the Sri Lankan government’s protection against domestic violence, that do not amount to the de facto permission of domestic violence as changes cannot be expected to happen overnight.  That led him to the conclusion that the Applicant’s claim must fail that even if the ineffectiveness of the machinery of government in preventing domestic violence provides substantial grounds for believing that the Applicant would be in danger of being subjected to torture.

8.  We do not express any concluded view on this issue.  However, we do see room for reasonable arguments and they should be allowed to be canvassed fully in an application for judicial review.

9.  We therefore made an order allowing the appeal.

(M H Lam) Vice President

(Susan Kwan) Justice of Appeal

(Thomas Au) Judge of the Court of First Instance

Mr Jose D’ Almada Remedios, instructed by John M. Pickavant & Co, assigned by DLA, for the applicant