SAYSUD VANIDA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1113/2024

[2024] HKCFI 2390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1113 OF 2024

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 November 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“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 expires on 1 March 2023.  Her application was filed on 12 July 2024, which is more than 1 year and 4 months’ late.  This issue will be dealt with below. 

2.  The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3)  of the Rules of the High Court (“RHC”), I shall deal with her application on paper. 

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6)  of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. 

The applicant

4.  The applicant is a national of Thailand, aged 29.  She came to Hong Kong as a visitor.  She overstayed and was arrested by police.  She was charged, convicted and sentenced accordingly.  She lodged a

5.  Briefly, Totim was her ex-boyfriend.  He worked in a nightclub.  They lived together.  He returned home and demand money from her.  If she could not satisfy his demand, he beat her up with bare hands; and later with hard object, causing bleeding of her mouth.  She did not report the matter police.  Nor did she receive medical treatment from hospital.  She left Totim and lived in her friend’s place or her parents’ home.  She was afraid that Totim would kill her.  In mid-2019, he borrowed money from a creditor to buy a scooter.  She was unable to pay the installments.  The creditor employed a lawyer to demand payment.  The creditor was unable to locate her.  The creditor reported the matter to police.  She was told by her family members that a warrant of arrest had been issued by police against her.  She did not consider that the state would protect her and internal relocation would not be viable. 

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i)  there are no substantial grounds to believe that she will be at risk of being ill-treated by Totim in Thailand [12]-[14]; (ii)  her creditor did not have an intention of harming her [15]-[17]; state protection will be available [19] – 24]; and internal relocation is viable [25] – 29].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 12 July 2024, the Board conducted an oral hearing. 

9.  Having considered the applicant’s evidence, the Board rejected the applicant’s evidence on the facts of her claim as it said:

“46. For the foregoing reasons, and on the limited and contradictory evidence before it, the Board is unable to be satisfied about any of the Appellant’s claims other than her nationality and identity as indicated in the preceding section.

48. Consequently, the Board is not satisfied that the Appellant faces any risk of serious or significant harm if she returns to Thailand now or in the reasonably foreseeable future, whether from an ex-boyfriend, creditors, the police or anyone else.”

10.  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

11.  The applicant has filed Form 86 dated 12 July 2024 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant did not raise any specific ground to challenge the Board’s Decision.  Nor did she explain her late application.

DISCUSSION

13.  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 (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted.  I shall consider the merits of the applicant’s case.

14.  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).

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

16.  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.”

17.  The applicant has failed to raise any valid ground to challenge the Board’s Decision.  In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

18.  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

19.  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.