HCAL 1271/2021
[2022] HKCFI 1515
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1271 of 2021
| BETWEEN | | |
| Raksaboondasri Charoenporn | 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;
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 26 August 2021 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”), a hearing was fixed for her and she had appeared before the court.
The applicant
3. The applicant is a national of Thailand, a Christian, aged 61. She came to Hong Kong on 16 September 2017 as a visitor. She was allowed to stay for 2 days. She overstayed and was arrested for breach of a deportation order. She was sentenced to 34 months’ imprisonment on 17 December 2020. By written representation, she lodged non-refoulement claim on 19 March 2021.
4. The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her creditor, Poon, a loan which she was unable to repay and Poon had threatened to harm and kill her. She borrowed 150,000 Thai Baht from Poon for the medical expense of her husband in Hong Kong. According to the applicant, Poon was very rich and influential, having a triad background. He was a member of United Front for Democracy Against Dictatorship (Red Shirts Army). She was unable to repay, not even the monthly interest. In December 2016, Poon and two triad members came to the applicant’s home and chased her for repayment of interest. The applicant explained to Poon that she was unable to repay any money to him for the time being. Poon threatened to kill her if she could not repay the monthly interest on time. The applicant did not report to police, but left Thailand for Hong Kong on the same day as a visitor. She returned to Thailand. Two months later, she attempted to enter Hong Kong but was refused. In 2017, she changed her name and obtained a new passport. In December 2017, Poon and two members visited the applicant at her home and chased her for repayment of the monthly interests. She asked Poon to lend her another 60,000 Thai Baht, using her house as a security for the loan. Poon agreed but he threatened to kill her if she did not pay the monthly interest on time. The applicant left Thailand for Hong Kong as a visitor and she overstayed. She was arrested, charged and sentenced to imprisonment.
The Director’s Decision
5. The Director considered the applicant’s claim in relation to the following risks:
(1) risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(2) 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”);
(3) 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
(4) 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 on the basis that the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) Poon did not have the intention of harming or killing her as he had twice chased her for the monthly interest payment, which she was unable to pay and he did not harm her; (ii) the state was not involved and there was no evidence to show that Poon or his people were able to locate her wherever she lived in Thailand [11-12]; (iii) state protection would be available to her [13]; and (iv) internal relocation was an option open to her [16-17].
The Board’s Decision
7. The applicant appealed to the Director’s Decision to the Board. On 6 August 2021, the Board conducted an oral hearing for her appeal.
8. Having considered the evidence, the Board found that the applicant failed to establish that there were substantial grounds for believing that she would be subjected to harm or being killing if she returned to Thailand. It relied upon her evidence that she had been unable to pay the monthly interest to Poon on two occasions and Poon did not do violence to her other than threatening to kill her if she was unable to pay on time [59]. State protection was available to her [58]. Internal relocation would be available to her as well [67-68].
Application for leave to apply for judicial review of the Board’s Decision
9. The applicant filed Form 86 dated 10 September 2021 for leave to apply for judicial review of the Board’s Decision.
10. In her affirmation in support of her application, the applicant enclosed the Board’s Decision without specifying any ground.
DISCUSSION
11. 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, CA, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).
12. 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.”
13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she did not understand the Director’s Decision or the Board’s Decision. I explained those Decisions to her. She further said she wanted to stay in Hong Kong because she had a sister here and she wanted to stay with her.
14. There is no valid reason to challenge the Board’s Decision from the applicant.
15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
17. 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 8th day of June 2022
| | (M.O. WONG)(Ms)
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
Notesfor 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 8 June 2022
Raksaboondasri Charoenporn
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 8 June 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18163/21/6/141/TH84
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 485/21 (Formerly RBCZ 10498/21)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1