PHONDAENG KANYAPHAK v. TORTURE CLAIMS APPEAL BOARD

HCAL 1272/2023

[2026] HKCFI 1851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1272 OF 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

The application for Leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Thailand who arrived in Hong Kong on 11 November 2014 with permission to work as a foreign domestic helper until the expiration of her employment on 11 November 2016 when she did not depart and instead overstayed, and was arrested by police more than 4 years later on 14 January 2021, and for which she was subsequently convicted and sentenced to prison for 22 weeks. After she was discharged from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim for protection on the basis that if she returned to Thailand she would be harmed or killed by her abusive husband over their marital disputes and/or by her creditor for failing to repay her debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in a village in Kaibokwan Sub-district, Muang District, Nong Khai, Thailand. After leaving school she married her husband and raised a family with 3 children in her home village, during which her husband went to Taiwan to work as a construction worker to support the family.

3.  In 2005 her husband returned to Thailand after picking up bad habits including heavy drinking, and whenever he was drunk he would become violent and abusive towards the Applicant by beating her at will.

4.  Eventually the Applicant found herself unable to tolerate his abuses and asked for a divorce to end their marriage, but to which her husband refused unless he was paid a large sum of money.

5.  In order to leave her husband the Applicant in 2014 applied to come to Hong Kong to work as a foreign domestic helper with the help of a loan borrowed from some local money-lender to be repaid with her salary earned in Hong Kong, which she did when she arrived on 11 November 2014 to start her employment.

6.  However, upon the completion of her employment in November 2016, and when she was unable to secure another employment contract to earn money to repay her loan, and when her creditor started to make threats against her, the Applicant was afraid to return to Thailand and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police more than 4 years later in 2021, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 29 March 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 24 June 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband or creditor upon her return to Thailand as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of them to seriously harm or kill her other than angry words from her husband or just attempts by her creditor to press her to repay her debts, that in any event there were private domestic or monetary disputes between the Applicant and her husband and creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Thailand with a large population of 68 million people spread across a vast territory of more than 513,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Bangkok where it would be difficult if not impossible for her husband or creditor to locate her.

9.  On 7 July 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 21 July 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 January 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found material inconsistencies discrepancies and vagueness in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband or creditor that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon her overstay in November 2016 until more than 4 years later and only after her arrest by the police that it rejected her claim of any fear of risk of harm from her husband or creditor upon her return to Thailand, that in any event due to the lengthy separation between her and her husband that it is not accepted that her husband would still have any adverse interest in her, nor is there any reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event these were private personal disputes between her and her husband and creditor only without any official involvement that it is not accepted that the Applicant would face any real risk of any of the proscribed harms upon her return to Thailand that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 25 July 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her subsequent written submissions she put forward the following grounds for her intended challenge of the Board’s decision:

(1)   That the Board is in breach of procedural fairness for unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)   That the Adjudicator acted in a procedurally unfair manner to the Applicant by totally relying on news not officially recognized by the government.

12.  By then the Applicant was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the three-month period for her to file her Form 86 fell on 19 April 2023, the Applicant was therefore some 3 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 3 months must be considered as substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 19 January 2023 to the Applicant’s then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

15.  As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI, or what source of news relied on by the Board were not officially recognized. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate her claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.  Furthermore, the fact is that it has also been established by the Director in his decision that the risks of harm in the Applicant’s claim even if real are localized ones and that it is not unreasonable or unsafe for her to relocate to other part of Thailand, a decision also agreed and confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.  Moreover, the Applicant has recently in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to Thailand as soon as possible.

21.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more issues for her to return to her home country, I accordingly dismiss her leave application.

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