SONGNOK PUNTHIPA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2672/2024

[2025] HKCFI 904

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2672 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 Songnok Punthipa (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 16 January 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 20 September 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”).

Background of the Applicant

2.  The Applicant is a Thai. She was born in Khon Kaen Provision, Thailand on 17 May 1974 and had received 6 years of formal education. From 2008 to 2009, she operated a small grocery store with her sister in Kahon Kaen. In 2009, she worked as a domestic worker in Brunei.

3.  The Applicant claimed that in around late 2008, when she was in Cambodia, she borrowed 600,000 Thai Bhat (“Loan”) from a member of a Cambodian gang (“Creditor”). She was required to pay back the Loan with 25% interest within a month.

4.  The Applicant lost all the money in gambling in a casino in Cambodia and was unable to repay the Loan. The Creditor beat her and imprisoned her in a guestroom in the casino hotel. She managed to sneak back to her home in Thailand but the Creditor’s men managed to find her home in Thailand about two to three weeks after her return. Through the Applicant’s sister, the Creditor’s men threatened to kill her, so she fled from her home. She eventually came to Hong Kong to seek protection.

5.  She claimed that the Creditor would harm or kill her because of the unpaid Loan if she returned to Thailand.

6.  The Applicant made a torture claim under Part VIIC of the Immigration Ordinance, Cap. 115 (the "Ordinance") (“torture risk”) but she withdrew it in mid-2011. She sought to re-open the torture claim in December 2012 but this was refused by the Director on 11 April 2013. Her appeal against the Director’s refusal to the Board was unsuccessful. Her torture claim under the Ordinance thus concluded.

7.  On 24 August 2015, the Applicant lodged the NRC. The Director assessed the NRC on the remaining grounds (other than the torture risk) under the unified screening mechanism (“USM”), namely:

(a)  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”) (“BOR 2 risk”);

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

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

8.  By the DOI Decision, the Director refused the NRC. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

9.  On 31 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 and the Director as the interested party.

Legal principles applicable to judicial review

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

11.  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. Assessment of evidence and COI [i.e. country of origin information] 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: 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.”

12.  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

13.  The Applicant failed to attend the court hearing scheduled for 20 February 2025 despite a notice of hearing dated 3 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 already placed before the court.

14.  The Applicant filed the Form 86 on 31 December 2024.

15.  Order 53 rule 4(1) of the Rules of the High Court (“RHC”) provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

16.  The Board’s Decision was issued on 16 January 2020. As such, the Applicant should have filed the Form 86 latest on 16 April 2020. The Form 86 was filed on 21 December 2024. It was very late.

17.  The Applicant was late for more than 4 years and 8 months in filing the Form 86. This is a very substantial and inordinate delay. In the Form 86, the Applicant applied for time extension to file the Form 86 on the grounds that she required much assistance to understand the Board’s Decision and prepare for this intended judicial review application.

18.  I do not accept that the Applicant would require more than 4 years to understand the Board’s Decision and to prepare for this application. The Applicant’s explanation is far from satisfactory.

19.  In the Po Fun Chan case (supra), Litton NPJ opined at §52 of the judgment that where an application was made many months after the time limit mentioned in order 53 rule 4 of the RHC, the judge was entitled to refuse leave, however strong the complaint might otherwise be. As such, this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay.

20.  For the sake of good order and completeness, I shall also consider the merits of the Applicant’s application before deciding on how to dispose of the matter.

21.  The Applicant attended the hearing before the Board on 19 March 2019 (“1^st Hearing”) but failed to attend the further hearing before the Board scheduled for 6 December 2019 (“2^nd Hearing”). The Board sent a letter to the Applicant on 6 December 2019 requesting an explanation for her failure to attend the 2^nd Hearing, and informing her that failing which, a decision on the Appeal would be made (“Letter”). The Letter was returned to the Board unclaimed. The Board proceed to deal with the Appeal according to papers included in the hearing bundle and evidence given by the Applicant at the 1^st Hearing.

22.  In the Supporting Affirmation, the Applicant only exhibited the Board’s Decision but no other supporting documents.

23.  The Board found several aspects of the Applicant’s evidence to be inconsistent raising serious doubts about her credibility generally and those of her claims. Her testimony at the 1^st Hearing was inconsistent with her statements to the Director. The Board found that the numerous inconsistencies between the Applicant’s evidence given at different stages of her non-refoulement claim proceedings relating to central and significant details of her alleged experience confirmed its doubts about the credibility of her claims. The Board also found various aspects of her claims implausible and unbelievable. (See §§73-76 of the Board’s Decision)

24.  The Board was not satisfied that the Applicant borrowed money from either a loan shark or illegal syndicate. It therefore followed that the Board was not satisfied that the Applicant was held in the casino in Cambodia and assaulted or that she was pursued by loan shark or illegal syndicate in Thailand. (§77 of the Board’s Decision) The Board considered that there was not a real risk that the Applicant would face any of the proscribed forms of harm should she return to Thailand.

25.  In the Form 86, the Applicant contended that the Board’s Decision was internally inconsistent and logically flawed in that: “Having accepted the Applicant’s story about the debt the Adjudicator then reaches a decision that the attackers would not seriously harm or Kill the Applicant.” (§8 of the statement (“Statement”) annexed to the Form 86)

26.  This is plainly wrong. The Board had clearly stated in §§77, 79 and 81 of the Board’s Decision that it was not satisfied that the Applicant borrowed money from either a loan shark or illegal syndicate. I see no merits in this ground.

27.  The Applicant complained that the Director had failed to give proper weight to the issue of state acquiescence. (§9 of the Statement) This is an application for leave for judicial review of the Board’s Decision (not the DOI Decision). Hearing of the Appeal before the Board was de novo. Errors (if any) made by the Director in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision.

28.  The Applicant further contended that the Board’s Decision and the DOI Decision were unreasonable and unfair in the Wednesbury sense and the Director and the Board reached their decisions wrongly in assessing her non-refoulement claim (§9 of the Statement). No particulars in support of such complaints were provided in the Form 86 or the Supporting Affirmation. Without particulars, such grounds are not reasonably arguable.

29.  As pointed out in the Nupur Mst (supra) case, assessment of evidence and risk of harm were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

30.  In disputing the findings on assessment on evidence, credibility and risk of harm, the Applicant seeks to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

31.  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 in affirming the DOI 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.

32.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds under the USM (other than the torture risk) for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

33.  The Board did not accept that the Applicant owed any money to anyone in Thailand or Cambodia or that she would be seriously harmed or killed by loan shark or illegal syndicate because of her alleged debt if she were returned to Thailand.

34.  The Board found that there were no substantial grounds to believe that the Applicant faced a genuine and substantial or real risk of being subjected to the BOR 3 risk if she returned to Thailand. The Board did not accept that the Applicant had a well-founded fear of the persecution risk. The Board also found that there were no grounds to believe that the Applicant faced the BOR 2 risk.

35.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection. These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. 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 non-refoulement proceedings. 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

36.  The Form 86 was filed out of time without leave of the court nor with good explanation. 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 consideration and assessment of the NRC, 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. I further dismiss the Applicant’s application to file the Form 86 out of time.

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