ANOP PAN-IN alias PANG PO LUNG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1271/2019

[2024] HKCFI 1354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1271 OF 2019

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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 6 July 2017 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Thailand who first arrived in Hong Kong in 2004 on a dependent visa but was arrested by police in 2010 for various criminal offences including wounding with intent, claiming to be a member of the triad society, and false imprisonment for which he was subsequently convicted and sentenced to prison for a total of 51 months, whereupon on 26 April 2013 a deportation order was issued by the Immigration Department against him when he then raised a non-refoulement claim for protection on the basis that if he returned to Thailand he would be harmed or killed by the creditor of his former business in Thailand over some unpaid debts.

2.  The Applicant was born and raised in Phetburi Province, Thailand. After his father passed away when he was small, his mother remarried and came to live in Hong Kong, while the Applicant remained in Thailand under the care of his maternal grandmother.

3.  After leaving school the Applicant worked as a transportation worker in his home district, and in 2002 he formed a construction company with 3 friends as partners and with the capital for the company borrowed by one of his partners from a local money-lender.

4.  In 2004 when his company defaulted with the loan repayment, the money-lender sent men to threaten and beat the Applicant that his cheekbone was fractured and that he was subsequently taken to a local hospital for medical treatments.

5.  Upon his discharge from hospital, the Applicant fled to Bangkok to hide from the money-lender, and in May 2004 he came to Hong Kong to join his mother on her dependent visa.

6.  Shortly thereafter the Applicant returned to Thailand to stay in a temple as a monk for one year before returning to Hong Kong under his mother’s dependent visa, during which he was told by his grandmother in Thailand that the money-lender had sent men to come looking for him from time to time in his home district in Thailand, and in 2009 when he returned to Thailand to visit his grandmother, he was also told the same.

7.  While in Hong Kong in 2010, the Applicant was arrested by police on various criminal offences for which he was subsequently convicted and sentenced to prison for a total of 51 months, and upon his discharge from prison and was referred to the Immigration Department to be deported back to Thailand under a deportation order, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 29 June 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, cap. 383 (“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”).

9.  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 the money-lender and followers upon his 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 them to seriously harm or kill him other than to press him to repay his company’s loan, that in any event it was a private monetary dispute between them 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 67 million people spread across a vast territory of more than 510,000 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 his home district in large cities such as Bangkok where it would be difficult if not impossible for anyone to locate him.

10.  On 15 September 2016 the Director on his own initiative invited the Applicant to submit additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response or reply from him, the Director by a Notice of Further Decision dated 15 November 2016 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to Thailand.

11.  By then the Applicant was in the process of appealing to the Torture Claims Appeal Board (“Board”) against the Director’s earlier decision, and for which he attended an oral hearing on 1 December 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 July 2017 his appeal was dismissed by the Board which also confirmed both decisions of the Director on all the applicable grounds.

12.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it wholly rejected the credibility of his claim of fear of harm from a money-lender over some unpaid loan as entirely fabrications which he made up along the way that he is a witness of no credit whatsoever, and that there is no evidence on which the Board might find that he would be at risk of any kind if refouled to Thailand that the Board concluded that his claim for non-refoulement protection failed on all applicable grounds.

13.  On 10 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge, of which he confirmed at the hearing as follows :

(1)  That the Board erred in its decision as unfair and unjust in failing to consider or take into account of the fact that the Applicant was under a dependent visa with permission to remain as a dependent until 7 June 2011 or the tremendous hardship that his wife and children would suffer if the Applicant was to be deported from Hong Kong, or that his children would be deprived of the love and affection of their father;

(2)  That the Board failed to duly consider the Applicant’s present circumstances; and

(3)  That the Board failed to consider that the Applicant is not a risk factor and does not pose any threats to the Hong Kong community.

14.  By then the Applicant was however out of time with his 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.

15.  As the last day of the three-month period for him to file his Form 86 fell on 6 October 2017, the Applicant was therefore more than 1 year 7 months late with his 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.

16.  In the Applicant’s case, a delay of more than 1 year 7 months must be considered as extremely substantial and inordinate, for which he explained at the hearing of his application that he was without legal representation and hence was not aware that he could challenge the Board’s decision by way of judicial review until later on a date which he could not remember when he reported on his recognizance that he was so advised by his immigration officer, but by then he was already out of time with his intended application.

17.  The record shows that the Board’s decision was sent on the same day of 6 July 2017 to the Applicant at his then reported address without being returned through undelivered post, while ignorance of the law can never be accepted as any excuse or justification for their non-compliances. As such I am not satisfied that the Applicant has made out any good or valid justification for his such serious delay.

18.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just bare and vague assertions containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, while it has been well established that a non-refoulement claimant with no right to enter or remain in Hong Kong cannot rely on the rights of his wife or children or family unity rights to challenge immigration decisions refusing him to enter or remain so as to be with his family or children as a matter of Hong Kong constitutional law: see Comilang & Anor v Director of Immigration, and Luis & Others v Director of Immigration, FACV 9 & 10 of 2018, [2019] HKCFA 10. 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 his intended challenge.

19.  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 his 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.

20.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 33 – 72 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his 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.

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

22.  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.

23.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reasons for his seriously delay, I refuse to extend time and accordingly dismiss his 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