UDOMDEE NAWAPATIKAMON alias UDOMDEE NAWAPATKAMON v. TORTURE CLAIMS APPEAL BOARD

HCAL 2032/2023

[2024] HKCFI 803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2032 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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Thailand who arrived in Hong Kong on 14 March 2020 as a visitor with permission to remain as such as extended up to 27 August 2020 but was arrested by police on 5 August 2020 for breach of her conditions of stay and for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 6 weeks. Upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim for protection on the basis that if she returned to Thailand she would be harmed or killed by her creditor over her unpaid debts and/or by her former boyfriend due to their personal disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born in Saraburi, Thailand and was raised in her parents’ home village in Bangragum Sub-District, Bangragum District, Phitsanulok. After leaving school she assisted her mother running her food stall in her home village.

3.  In about 2015 her mother became seriously ill with a kidney disease and had to close down her food stall, and to meet her mother’s medical expenses, the Applicant borrowed several loans from a local money-lender with monthly interest payments until discharge of those loans which she managed to make from her family’s savings, but when she eventually ran out of money by mid-2019, her creditor sent men to make threats against her, which caused the Applicant to flee from her home to hide in a friend’s place.

4.  The Applicant then formed a relationship with a man whom she met on the internet, and soon they started to cohabit together, but when she discovered that her boyfriend was without employment and often indulged in alcohol, and when he was drunk he would become violent and abusive towards her by beating her at will, and when the Applicant told him that she could not tolerate his abuses and wanted to end their relationship, her boyfriend became furious and threatened to kill her if she dared to do so.

5.  As the Applicant became fearful for her safety due to persisted threats from her creditor and her boyfriend, she therefore left Thailand on 14 March 2020 for Hong Kong where she was subsequently arrested by police for breaching her conditions of stay, and upon her discharge form prison and was referred to the Immigration Department for deportation, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 7 April 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 18 May 2021 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”).

7.  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 creditor or her former boyfriend upon her 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 either of them to seriously harm or kill her, that in any event these were private monetary or relationship disputes 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 68 million people spread across a vast territory 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 Bangkok where it would be difficult if not impossible for anyone to locate her.

8.  On 31 May 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 3 October 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 2 November 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of fear of harm from her creditor and/or her former boyfriend over their monetary or relationship disputes which were however both private personal matters 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 for her to move safely to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 13 November 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for 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.

11.  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.

12.  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 risks of harm in her claim if real are localized ones 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.

13.  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.

14.  Moreover, the Applicant recently on 16 January 2024 filed an affirmation requesting to “cancel” her application as she has been granted dependent visa but without providing any further details or documentary evidence in support.

15.  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 recent request to withdraw her application, I accordingly dismiss her 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