SANSRI SUWANNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1436/2024

[2025] HKCFI 143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1436 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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 18 December 2023 (“the Board’s Decision”) dismissing her appeal against the Director’s Decision as described below, rejecting her non-refoulement claim. Time for her to file notice of appeal expired on 18 March 2024[1]. Her application filed on 26 August 2024 is late for more than 5 months. I shall deal with this issue 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.

The applicant

3.  The applicant, aged 39, is a national of Thailand. She last arrived in Hong Kong on 24 March 2020 as a visitor and was allowed to stay until 31 July 2020. She overstayed since 1 August 2020. She was arrested by police and was referred to the Immigration Department. By written representation, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor because she was unable to repay her loan.

4.  According to the applicant, she ran a business of a restaurant in Thailand and she had borrowed 2 loans from the creditors in 2013 and 2014 respectively. Since she was unable to pay the interest, the creditors demanded repayment of the loan and they had threatened to kill her. In 2015, the first creditor had sent his subordinates to restaurant where they vandalized her restaurant. The second creditor did not use violence, but had only threatened her verbally. Between 2015 and March 2020, the applicant tried to avoid the creditors by moving over to various places such as Italy, Malaysia, Korea, Singapore, Taiwan and Hong Kong. She was unable to stay in those places for long and she returned to Thailand after a short stay. In February 2020, she returned to Thailand after staying in Hong Kong. She was located by the first creditor, who had assaulted her and threatened to kill her if she was unable to repay her loan. She did not seek medical treatment or police protection. On 24 March 2020, she came to Hong Kong and overstayed there.

5.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 22 February 2022 (“the Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reasons that (i) her risk of being harmed or killed by her creditors if she returns to Thailand is low [11]; (ii) state protection will be available to her [12]; and internal relocation is viable [13].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 19 July 2023, the Board conducted an oral hearing.

9.  Having considered the evidence, the Board found that there were a lot of discrepancies and inconsistencies between her evidence to the Director and her evidence to the Board. It further stated:

“84. Having considered her testimony and all the evidence with due care, I find the core of the Appellant’s evidence vague and lack of credence. I find the Appellant kept embellishing her case.

85. I accept that the Appellant was a national of Thailand.

86. However, for the reasons given above, I was left in no doubt that her account concerning 2 large loans from a loan shark and Maggie, and being at risk as a result, is false.”

10.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 on 8 October 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.

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 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.