ARBSUWAN NETNAPA alias ARBSUWAN THANANAN alias KHAMSANIT THANATCHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 15 May 2020 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 15 August 2020. Her application was filed on 7 October 2020, which is late for one and a half months. This issue will be dealt with below.

2.  The applicant did not request an oral hearing.

The applicant

3.  The applicant is a national of Thailand. She is an illegal immigrant. She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she will be harmed or killed by a drug dealer and his associates because she had disclosed their illegal acts to the police. Details of her story are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002021_2020_files/the_Board's_Decision.pdf.

The Director’s Decision

4.  The Director considered the applicant’s claim in relation to the following risks:

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

b.   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”);

c.   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

d.   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”).

5.  By way of Notice of Decision dated 25 September 2019 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

6.  The applicant appealed the Director’s Decision to the Board.  On 11 March 2020, the Board conducted an oral hearing. The applicant was absent at the hearing despite due notice having been given to her, warning her that her appeal would be dealt with in her absence if she failed to attend the hearing. Since the applicant was absent, in accordance with section 15(3) of the Immigration Ordinance (“the Ordinance”), the Board assessed her appeal.

7.  Having considered the evidence and materials before it, the Board made the findings below.

(1)   The Board concluded that the applicant is not a witness of truth and she had fabricated her claim that she was involved in selling drugs.  [81] For evidence for the conclusion, see [82] – [84].

(2)   The Board rejected her evidence as to the facts of her claim.  [92] – [93]

8.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

9.  The applicant has filed Form 86 dated 7 October 2020 for leave to apply for judicial review of the Board’s Decision.

10.  In support of her application, the applicant has raised that the Board’s Decision is wrong and that it did not consider BOR 2 risk.

DISCUSSION

11.  As mentioned in paragraph 1, this application is late.  In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider, inter alia, the prospect of the intended appeal.  I shall consider the merits of the applicant’s case.

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.  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.”

15.  The reasons raised in paragraph are her bare assertions without any evidence in support.  They are not valid to challenge the Board’s Decision[2]

16.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her 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