RONGREANG KHWANSUDA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2466/2024

[2025] HKCFI 1243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2466 of 2024

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Rongreang Khwansuda (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 18 November 2024 (“Board’s Decision”) when the Board refused the Applicant’s application for late filing of her notice of appeal (“NOA”) against the decision by the Director of Immigration (“Director”) dated 17 April 2024 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Thai. She was born on 26 August 1994 in Roi-et Province, Thailand. She received 14 years of education and had around 9 years of working experience.

3.  The Applicant claimed that her ex-boyfriend in Thailand (“OU”) would harm or kill her. She claimed that she met OU in around mid-2016 and they started living together after five months. The Applicant noticed that OU was taking illegal drugs.

4.  Since October 2016, OU started attacking the Applicant from time to time. In around mid-2018, OU attacked the Applicant with a picture frame and she had to stay in a hospital for five days. She reported OU to the Thai police but the police said they could not do anything because it was a domestic dispute.

5.  The Applicant gave birth to a son with OU in September 2021. In around February 2022, she learnt from a friend of OU that OU was trafficking in illegal drugs. In March 2023, the Applicant fled to Taiwan to avoid OU, but she was soon repatriated to Thailand for taking up unlawful employment. She eventually came to Hong Kong in September 2023 to seek protection.

6.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

7.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”) out of time. By the Board’s Decision, the Board refused her application for late filing of the NOA.

8.  On 13 December 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent

Legal principles applicable to judicial review

9.  In a judicial review, the court does not step into the shoes of the decision makers.

10.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. … … 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

11.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

12.  The Applicant failed to attend the court hearing scheduled for 4 March 2025 for this application despite notice of hearing dated 7 February 2025 having been sent to her and not being returned. As such, I decided to proceed to deal with this application according to papers placed before the court.

13.  In the Form 86, the Applicant did not put forward any ground for her intended judicial review.

14.  In the Supporting Affirmation, the Applicant deposed that it would be dangerous for her to return to Thailand and she had no choice but to remain in Hong Kong. She claimed that the Director rejected the Claim without a proper understanding of her situation. She invited the Immigration Officer to visit her country to understand her case.

15.  The Applicant exhibited a copy of the Board’s Decision but no other supporting documents to the Supporting Affirmation.

16.  In the Supporting Affirmation, the Applicant raised various complaints against the Director. As this is an application for judicial review of the Board’s Decision (not the DOI Decision), errors (if any) made by the Director in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision. In fact, the Board’s Decision was on refusing the Applicant’s late filing of the NOA, it has nothing to do with the matters raised in the Supporting Affirmation. Those matters will not assist the Applicant in this application.

17.  Under section 37ZS(1) of the Ordinance a person who wishes to appeal against a decision of the Director rejecting a non-refoulement claim, must file with the Board a notice of appeal within 14 days after notice of decision is given to that person, unless late filing of the notice is allowed by the Board under section 37ZT(3) of the Ordinance.

18.  The DOI Decision, which was also the notice of decision referred to in the Ordinance, was made on 17 April 2024. If the Applicant wished to appeal against the DOI Decision, she had to file the NOA latest by 2 May 2024 (1 May 2014 being a public holiday). The Applicant filed the NOA on 18 October 2024 which was received by the Board on 23 October 2024. She was thus late by more than 5.5 months in filing the NOA.

19.  The Applicant did not bring the Appeal within the 14-day period prescribed by section 37ZS(1) of the Ordinance. Under section 37ZT of the Ordinance, the NOA had to include an application for late filing of the NOA which had to include a statement of the reasons for failing to file the NOA within the 14-day period. It had to be accompanied by all available evidence relied on in support of the reasons for late filing.

20.  Section 37ZT of the Ordinance further provides that the Board has to decide, as a preliminary decision without a hearing, whether to allow the application for late filing of the notice of appeal and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons.

21.  Under section 37ZT(3) of the Ordinance, the Board might allow the late filing of the NOA if the Applicant provided sufficient evidence in writing to satisfy the Board that she had exercised all due diligence to file the NOA within the 14-day period but failed to do so because of circumstances beyond her control.

22.  The Applicant did not state any reasons for her late filing of the NOA in the NOA but wrote to the Board on 1 November 2024 (“Letter”) explaining that she was late in bringing the Appeal because she did not know how to lodge an appeal until she was detained by the Immigration Department. She learned about the Appeal from someone in the detention centre but by that time she was already late for filing the NOA. No documentary or other supporting evidence was provided by the Applicant for the Board to consider her application for late filing of the NOA.

23.  The Board found that the notice of decision which was also the DOI Decision was sent to the Applicant on 17 April 2014 (§6 of the Board’s Decision). Thus, the deadline for filing of the NOA was 2 May 2024.

24.  The Board noted that §41 of the DOI Decision notified the Applicant of her right of appeal against the DOI Decision within 14 days from the date of the DOI Decision. There was clear instruction to the Applicant on when, where and how to lodge the Appeal.

25.  The Applicant was legally represented in lodging the Claim with the Director and attending the screening interview with the Immigration Officer (§§6.52 and 6.55 of the DOI Decision). The Board was of the view that the Applicant could also seek help from the Duty Lawyer Service when she was released on recognizance. Everything was under her control when she was released on recognizance.

26.  The Applicant was several months late and she did not identify any circumstances beyond her control which would make the Board’s refusal to accept her late filing unjust.

27.  As pointed out in the Nupur Mst case (supra), the court would not intervene into the decision of the Board by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision.

28.  The Board found that the Letter gave no reason for failure to comply with the filing deadline and no circumstances were set out to explain that failure. No supporting documents were relied on. There was no other matter known to the Board or revealed by the factual basis of the Applicant’s claim, which might amount to circumstances beyond her control, which would make it unjust not to allow the late filing of the NOA.

29.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

30.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the proceedings in respect of the Applicant’s application for late filing of the NOA. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

31.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the Board’s Decision, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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