DUANGMALA SIRIPORN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1899/2024

[2025] HKCFI 174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1899 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 Duangmala Siriporn (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 19 October 2022 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 20 October 2021 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Thai. She was born on 8 August 1989 in Nong Khai Province, Thailand. She received 15 years of education and had about 8 years of work experience in working at several electronics factory in Ayudhaya and operating her own clothing business at the weekend night bazaar there in 2012.

The Claim

3.  In around 2012, the Applicant borrowed THB 150,000 (“Loan”) from a supervisor at the electronics factory in Ayudhaya where she was working (“Creditor”). She used the money to settle her other outstanding debts and to start her clothing business. The monthly interest was THB 15,000 and there was no deadline for paying back the principal.

4.  The Applicant had no problem in paying the agreed interest for the first few months. However, her clothing business soon failed and she had to shut down the business in December 2012. The Applicant only paid half of the agreed monthly interest to the Creditor between December 2012 and July 2019 and stopped paying interest altogether from August 2019. She quitted her factory job in October 2019 and returned to live in her home in Nongkhai.

5.  In around October 2019, the Creditor came to the Applicant’s home with a male bodyguard who was armed with a pistol. The Creditor threatened to beat the Applicant up if she failed to settle the Loan within one month. Her bodyguard also slapped the Applicant’s face twice. (“1^st Incident”)

6.  In late January 2020, the Creditor visited the Applicant’s home again and asked her to pay THB 300,000 within a month as repayment of the principal and interest. When the Applicant said that she did not have the money, the Creditor’s bodyguard slapped her twice and pointed a pistol at her head. The Creditor threatened to kill her if she did not pay THB 300,000 within a month. (“2^nd Incident”)

7.  The Applicant fled to Hong Kong by booking a flight to Hong Kong with her own Thai passport. After coming to Hong Kong, the Applicant’s mother told her that the Creditor came to her home about once every 3 months to look for her and the Creditor threatened to kill her when she was found. The Creditor did not harm the Applicant’s family in Thailand.

8.  The Applicant claimed that she would be harmed or killed by the Creditor if she were returned to Thailand.

Procedural history

9.  The Applicant arrived in Hong Kong on 18 February 2020 as a visitor. Her permission to remain was last extended to 30 July 2020. She overstayed and was arrested on 17 November 2020. By a written representation of 4 December 2020, the Applicant lodged the Claim.

10.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

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

(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” and “BOR 2”);

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

11.  By the DOI Decision, the Director refused the Claim. 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.

12.  On 23 October 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.

13.  When the Applicant filed the Form 86, she expressly stated in writing that she did not request an oral hearing for her application for leave for judicial review. I proceeded to deal with her application by paper disposal.

14.  Order 53 rule 4(1) of the Rules of the High Court 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.”

15.  The Board’s Decision was issued on 19 October 2022. As such, the Applicant should have filed the Form 86 latest on 19 January 2023. The Form 86 was filed on 23 October 2024 and it was late.

16.  No application for extension of time to file the Form 86 was made by the Applicant.

17.  The Applicant was late for more than 1 year and 9 months in filing the Form 86. This is a very substantial delay. However, the Applicant has not applied for time extension to file the Form 86. No explanation has been provided by the Applicant for her late filing of the Form 86. As such, I have no basis to extend the time for the Applicant to file the Form 86 in this case and this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay.

18.  For the sake of good order and completeness, I shall consider the merits of the Applicant’s application for leave for judicial review before deciding on how to dispose of the matter.

The DOI Decision

19.  The Director noted that the low intensity and low frequency of past ill-treatment from the Creditor was indicative of a small future risk of harm upon the Applicant’s return. The injuries she suffered from the Creditor in the past were not serious. They did not attain a minimum level of severity. The Creditor and her bodyguard had the opportunities to seriously harm or kill the Applicant when they visited her home, but they refrained from doing so. This showed that the Creditor did not really intend to kill or seriously harm the Applicant. They only wanted to press her to repay the Loan.

20.  The Director was of the view that the Applicant’s behaviour of not seeking help from the police and not escaping from the Creditor immediately after the 1^st Incident were not consistent with a person who was genuinely in fear of being harmed or killed and thus wished to seek protection at the first reasonable and available opportunity. The Director was not convinced that the Applicant would face real and imminent risk of being harmed or killed upon her return to Thailand.

21.  The Applicant’s problem was basically private monetary dispute. There was no evidence to show that the Thai government was involved in, indifferent to or had provided any form of encouragement to support anyone to harm or kill the Applicant. She could depart Thailand without hindrance with her own passport revealed that she was not a target of the Thai government and the Thai government did not have any adverse interest in her. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

22.  There was nothing concrete to suggest that the Creditor was influential, powerful and had extensive connection to locate the Applicant easily in Thailand as the Applicant alleged. It was far-fetched to say that the Creditor was able to have such huge resources to locate the Applicant all over the country. The alleged risk of harm from the Creditor, even if existed, was at most considered as a localized one in the area of the Applicant’s hometown and Ayudhaya. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Chiang Mai or Phuket, the Creditor would have great difficulties in locating her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

23.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

24.  The Board found serious issues with the Applicant’s credibility. The Board decided to give the benefit of doubts to the Applicant and proceeded on the basis that the Applicant borrowed a significant sum from the Creditor to pay her other debts and to start her clothing business. The Board accepted that the Creditor sought repayment of the Loan and turned up at the Applicant’s home with the bodyguard who slapped the Applicant and menaced her with a pistol.

25.  However, the Board did not find the Applicant actually suffered any serious harm in either Incidents. The Board did not accept that the Creditor or her bodyguard ever intended to seriously harm or to kill the Applicant. They had ample opportunity and the means to seriously harm or to kill the Applicant, but did not do so.

26.  The Board found absence of a genuine fear of serious harm on the part of the Applicant if she were returned to Thailand. The Board noted that it was the Applicant’s own evidence that she fled Thailand to avoid her debt (as opposed to seek protection from harm). It was also her own evidence that she quitted her factory job in October 2019, which led to her inability to pay back the Loan. The Board was of the view that if the Applicant considered that there was a real risk of being seriously harmed or killed by the Creditor, she would not have ceased working. The Board also took into account the fact that the Applicant did not raise the Claim immediately upon her arrival in Hong Kong but waited until her arrest to do so. (§§75 and 78 of the Board’s Decision)

27.  The Applicant accepted that if she were refouled back to Thailand, she would probably go home and get work again in an electronics factory and keep paying interest to the Creditor. She told the Board that the Creditor would not harm her if she continued paying interest to the Creditor. The Board found that the Creditor would likely allow time for the Applicant to resume instalment repayments of the Loan. (§§62 and 79 of the Board’s Decision) The Board did not accept that the Creditor would inflict serious or fatal harm on the Applicant upon her return to Thailand.

28.  The Board was of the view that adequate state protection would be available to the Applicant, if necessary although the Board found it unnecessary for it to make a finding on this fact (§§76 and 81 of the Board’s Decision).

29.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

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

31.  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 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”.

32.  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

33.  The Applicant did not advance any grounds for her intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only stated that: “Duangmala, Siriporn, Applicant and wish to file for judicial review for my Torture Claims Appeal Board and ask for my help to stay in Hong Kong because my life is in danger in my country Thailand. Life protection under non-refoulement claim. Thank you.” She then produced the Board’s Decision as exhibit to the Supporting Affirmation but no other supporting documents.

34.  No proper ground for this 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.

35.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

36.  The Board found that the Applicant had failed to provide credible evidence to suggest that there were substantial grounds for concluding that she faced a real risk of serious or fatal harm from the Creditor or her bodyguard if she were returned to Thailand. The Board did not consider that there were substantial grounds for believing the Applicant to be in danger of being subjected to torture if returned to Thailand. The Board found that the Applicant did not face a genuine and substantial risk of being subjected to mistreatment in violation of BOR 3 or a real risk of having her right to life under BOR 2 being violated, should she return to Thailand. The Board also found that the Applicant did not have a well-founded fear of persecution risk.

37.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts 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.

Conclusion

38.  The Form 86 was filed out of time without leave of the court and having considered the Board’s Decision and the DOI 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 Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with a realistic prospect 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