CHAIJANTHUK RENU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 406/2023

[2023] HKCFI 1234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 406 of 2023

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 to apply for leave for Judicial Review be refused; and

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

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 17 March 2023 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 15 November 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 January 2022 (the “Notice”).  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing pursuant to Order 53 Rule 3(3) of the Rules of High Court (Cap 4A). 

2.  The Applicant is a Thai national, now aged 47. She had worked as a foreign domestic helper in Hong Kong since 1998.  She last arrived at Hong Kong on 24 March 2016.  Her employment contract was prematurely terminated and she overstayed her visa since 8 October 2016. On 26 August 2021, she was arrested and subsequently sentenced to 12 months’ imprisonment for overstaying and taking up unauthorised employment.  Then she raised her non-refoulement claim by way of written signification dated 27 September 2021.

3.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. Her claim was dismissed by the Director’s Notice.  Her appeal against the Notice was dismissed by the Decision of the Board.  She now applies for leave to apply for judicial review of that Decision. 

4.  Her leave application was made more than four months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court(Cap 4A), it is more than a month out of time.  Leave to file the leave application out of time is required.  In AW and Director of Immigration and William Lam^[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Though the delay is not insubstantial, the Court considered that on the facts of this case, merits of the substantive application is the determinant factor.  If there are merits, the Court will be prepared to condone the delay.  Hence, this Court proceeded to consider the merits in the leave application.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the Applicant with legal assistance from the Duty Lawyer Service and the record of her screening interview in the presence of her lawyer.  In gist, the Applicant claims that she will be killed by members of the Chart Pattana Party (“CPP”), if refouled to Thailand.

6.  The Applicant was born in Nakhon Ratchasima, Thailand.  She is married and has one adult child currently living in Thailand.  She has completed 12 years of formal education and has over two decades of working experience. 

7.  The Applicant claimed that in between her employment contracts in Hong Kong in 2015 and 2016, she was employed as an assistant in the sub-district administrative office in Thailand.  She was approached by a member of the CPP named Anant and given two million Thai Baht to distribute to voters at the rate of 1,000 Thai Baht each to purchase their votes for the CPP in the upcoming election.  The Applicant agreed.  But she only distributed one million Thai Baht to one thousand voters and used the remaining one million Thai Bahts to buy a piece of land for herself. 

8.  The CPP lost the election by a large margin.  Shortly thereafter, three to four CPP members visited the Applicant’s home and accused her for failing to pay enough voters to win the election.  They demanded return of the unspent funds.  The Applicant said that all the funds had been spent.  The CPP members demanded supporting evidence within one week, failing which they would kill her.  One week thereafter, four to five CPP members of the CPP came to the Applicant’s home and repeated their demand.  When she was unable to produce any evidence, they slapped her face and kicked her. 

9.  In early February 2016, four to five CPP members visited the Applicant’s home and repeated their demand.  When she was unable to accede to their demands, they beat her with bare hands.  Out of fear, the Applicant fled to her parents’ home.  However, the same group of CPP members barged into her parents’ home and verbally threatened to kill her if she failed to return the funds.

10.  The Applicant said she did not report the above incidents to the authorities as she believed they were corrupt and she had insufficient funds to bribe them.  To avoid the CPP, she came to Hong Kong for safety.  Since her arrival in Hong Kong, she maintained regular contact with her family.  She was told that the CPP members continued to visit the family home asking for her whereabouts.

The finding of the Board

11.  The Applicant testified before the Board.  The Board found her evidence vague, and inherently implausible.  Despite being given ample opportunities she was unable to give internally coherent evidence suggestive of lived experience.  The Board was thus led to reject almost the entirety of her case, save and except those relating to her personal background.

12.  It was five years after her last arrival in Hong Kong and after she was arrested for taking up unauthorised employment in 2021 that the Applicant lodged her non-refoulement claim.   She was unable to explain the delay.  The Board considered her conduct inconsistent with someone genuinely seeking protection.   

13.  The Applicant had been resident outside of Thailand from 1998 to 2015 and had, on her own admission, a complete lack of knowledge of the CPP and interest in or allegiance to the party.  Against that background, the Board had great difficulties to accept that she would be regarded by the CPP as the most well-known person to and closely associated with potential voters; and the right person to conduct nefarious vote buying activity on behalf of the CPP.  The Board also found it inherently improbable that officials of a well-known political party would entrust nefarious and illegal activity to an unknown recent returnee with no links or allegiance to the party, thereby putting themselves and their party at significant political risk.

14.  The Board found her account was extremely vague and lacking in details.  She was unable to give particulars of how she was approached by the CPP, how money was handed over to her, how she distributed it, the benefit she was supposed to be given and how she was to account to the CPP.  She was unable to describe how she was able to purloin one million Thai Baht unnoticed and use it to buy land in cash.  She was also unable to describe the attacks and threats in detail.

15.  The Applicant was unable to say what type of election she was seeking to buy votes for.  At first, after much prevarication and incoherence, she said it was a local election.  Then she changed her evidence and said it was a national election.  But her claim is simply false, since it is well known that no national elections were held in 2015 or 2016 as Thailand was then under a military government.

16.  Having rejected almost the entirety of her case, the Board held that the Applicant had failed to establish the factual basis in support of her claim to non-refoulement protection under any of the four applicable grounds under the USM.  Hence, the Board dismissed her appeal against the decision of the Director in the Notice.

Legal principles applicable to judicial review

17.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

18.  The Applicant did not advance any grounds for judicial review in the Form 86 or supporting affirmation.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Conclusion

19.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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 a very high standard of fairness. The Board found the Applicant’s evidence incredible and her case concocted.  She had therefore failed to establish the factual basis in support of her claim for protection.  As she bears the burden of proof, albeit on a low standard, this finding is necessarily fatal.  It was on that 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.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.   Accordingly, the application for leave to apply for judicial review is refused.

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