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HCAL 1386/2022
[2024] HKCFI 3322
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1386 OF 2022
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BETWEEN
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Chaiwong Chotika |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. The Applicant is a 39-year-old national of Thailand who arrived in Hong Kong on 16 March 2020 as a visitor with permission to remain as such up to 15 April 2020 when she did not depart and instead overstayed, and more than one year later on 15 June 2021 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Thailand she would be harmed or killed by her former boyfriend for ending their relationship. She was released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Lamphum Province, Thailand. After leaving school she worked in a production company, married her husband and raised a family with a son in her home district.
3. Later she divorced her husband and then started a relationship with a colleague who became her boyfriend in Lamphum Province.
4. However, soon she discovered that her boyfriend had indulged in drugs and alcohol, and when he was drunk, he would become abusive and hit the Applicant at will.
5. After 2 years the Applicant decided to end their relationship, whereupon her boyfriend became furious and beat her and threatened to kill her if she dared to leave him. Eventually the Applicant managed to secretly leave their rented apartment and returned to her mother’s home, and subsequently went to various places including Korea, Malaysia and Japan to look for jobs, during which she was told by her mother that her former boyfriend had kept looking for her.
6. Eventually the Applicant arrived in Hong Kong on 16 March 2020 where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 December 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
7. By a Notice of Decision dated 22 February 2022 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).
8. 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 her former boyfriend upon her return to Thailand as low due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of any real intention of him to seriously harm or kill her other than to press her to resume their relationship, that in any event it was a private relationship dispute between the 2 of them only 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 68 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 her home district in large cities such as Nakhon Ratchasima or Udon Thani where it would be difficult if not impossible for her former boyfriend to locate her.
9. On 9 March 2022 and 25 March 2022 the Applicant lodged 2 appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 27 October 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 November 2022, her appeal was dismissed by the Board which also confirmed the Director’s decision.
10. In its decision the Board accepted the Applicant’s claim of fear of harm from her former boyfriend for leaving him but found that the level of past ill-treatments did not meet the level of severity to warrant non-refoulement protection, and that in any event it was a private relationship dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Thailand as well as reasonable internal relocation alternatives within the country for her to move safely to other areas away from her home district such as Bangkok where she had stayed before without incidents and without any risk of being located by her former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.
11. On 1 December 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.
12. 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.
13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Thailand, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
14. 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.
15. Moreover, the Applicant on 27 August 2024 wrote to request to withdraw her application as the problem which she had in her home country has been resolved that she now wants to return to Thailand.
16. In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more problem for her to return to her home country, I accordingly dismiss her leave application.
Dated the 28th day of November 2024
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(Chung Lai Fan, Christine)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 28 November 2024
Chaiwong Chotika
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28 November 2024
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 20014
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2388/21 (formerly RBCZ/11271/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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