RE RAKSABOONDASRI CHAROENPORN

CAMP 305/2022

[2022] HKCA 1791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 305 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1271 OF 2021)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 8 June 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 30 June 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 2 August 2022. 

3.  On 18 August 2022, the applicant filed a summons in CAMP 305/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 18 August 2022, the applicant lodged her written submissions on 1 September 2022.  

5.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is a national of Thailand.  She married a Hong Kong resident in 1979 (who died in 2018).  She had been granted a dependent visa to stay in Hong Kong, but was convicted of criminal offences and was repatriated back to Thailand in 2007 after serving her sentence.  She attempted to enter Hong Kong again in 2008 but entry was refused.  The Applicant then used different names to come to Hong Kong on numerous occasions between 2014 and 2017. On 16 September 2017, the applicant used another new name to enter Hong Kong and overstayed.  She was arrested by police on 27 March 2019 for breach of deportation order, and was subsequently convicted and sentenced to 34 months’ imprisonment.  She finished her term of imprisonment on 11 February 2021 and is currently in custody in Castle Peak Bay Immigration Centre.[1]   

7.  The applicant lodged her non-refoulement claim on 19 March 2021 alleging that if refouled, she would be harmed or killed by her creditor in Thailand as she was unable to repay loans which she had borrowed in November 2016 and December 2017.  The factual background of this case was succinctly summarised by the Judge at [4] of the JR Decision ([2022] HKCFI 1515).

8.  By a Notice of Decision dated 15 June 2021, the Director of Immigration (“the Director”) had decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5]. 

9.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 6 August 2021 and by its decision dated 26 August 2021, the Board dismissed the appeal.  For the reasons set out at [49] to [66], the Board found that the applicant’s case only involved a private loan dispute.  And even though the applicant had failed to make any repayment of the capital sum or interest on her first loan which she had borrowed in November 2016, she still managed to obtain a second loan from the creditor in December 2017, the creditor not having harmed the applicant despite her default in repayment.  As such, the Board found that the creditor did not have any real intention to harm the applicant.  Country of origin information (“COI”) suggests there is reasonable state protection, and in any event, internal relocation is a reasonable and viable option.  On the totality of the evidence, the Board found that the applicant has failed to establish any substantial grounds for believing that she would be subjected to torture if refouled.  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Application for leave to start judicial review

10.  On 10 September 2021, the applicant filed a Form No. 86 to which was attached a separate sheet of paper setting out her grounds for relief.  The grounds are summarized as follows:

(i)  The decisions made by the Director and the Board were wrong, unfair and unreasonable.  The right to life is protected under Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance and she would face extra-judicial killings if refouled.

(ii)  The Director had failed to give proper weight to the issue of state acquiescence in her case and her non-refoulement was rejected unfairly.  She was tortured by law enforcement agencies and “high ups” in political circles and the state failed to render reasonable protection to her.

(iii)  The Adjudicator acted unreasonably and unfairly by placing too much reliance on COI but failed to consider her personal background and experience.  Although the Director had listed relevant COI which supported the assertion that the Thai police would not be able to protect the people, he failed to consider or give enough weight to it and ruled otherwise.

(iv)  The Director failed to take such argument into account or give enough weight to such argument and it was a clear case of unfair attitude shown by the Director.  The Director also failed to attain the high standard of fairness and the decision is unreasonable in the public law sense.

(v)  The Adjudicator had acted procedurally improperly and/or unfairly when assessing the applicant’s evidence and required her to respond to questions which she was not in a position to answer.  The Adjudicator failed to take into account the nexus of political parties and official corruption that caused state persecution.

The JR Decision

11.  The applicant attended an oral hearing before the Judge on 28 April 2022.  The Judge said at [10] of the JR Decision that in the affirmation in support of the application, the applicant did not specify any ground.  Although she had advanced written grounds for relief as mentioned above, she told the Judge at the hearing that she did not understand the decisions made by the Director and Board, and apparently, she did not pursue the grounds.  She only told the Judge that she wanted to stay in Hong Kong because she had a sister here and she wanted to stay with her ([13]).   

12.  After consideration of the Board’s decision, the Judge refused leave for the reasons set out in [14] - [16] of the JR Decision:

“14. There is no valid reason to challenge the Board’s Decision from the applicant.

15.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Application for extension of time to appeal the JR Decision

13.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 30 June 2022 for an extension of time to appeal.  That was dismissed by the Judge on 2 August 2022.  Hence, the Summons to this court. 

Discussion

14.  In considering whether to extend time for appeal, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

15.  As for (1), the applicant was late by 8 days between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was not substantial.   

16.  As for (2), the reasons for the delay, the applicant explained in her supporting affirmation filed on 30 June 2022 in support of her summons that she was illiterate and legally unrepresented, and she was not aware of the time limit to file her appeal against the JR Decision. She further claimed that she did not receive any correspondence from the court regarding the JR Decision.  However, it is noted that the JR Decision was sent to her on 8 June 2022 at Castle Peak Bay Immigration Centre where she is currently detained, and thus the JR Decision should have reached her within reasonable time.  It is further well-established that ignorance of the law, and lack of legal assistance are not excuses for delay.  Hence, we do not find any good reason for the delay.

17.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision except to say that “the Deputy High Court Judge Bruno Chan’s decision had reached unfairly without allowing me an opportunity to clarify my case and situation in my country”.  Obviously, the applicant had mistaken the identity of the judge in her case, but in any event, she did not advance any ground and/or pinpoint any error in the JR Decision. 

18.  In the Summons and supporting affirmation filed in this Court, she advanced the following grounds:

(1)  The Judge was wrong in law in holding that there was no state acquiescence or involvement.

(2)  The Judge failed to provide detailed reason in support of his decision.

In the applicant’s written submissions, she quoted passages from ST v Director of Immigration^[6] [2014] 4 HKLRD 277; Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on “high standards of fairness” and submitted that the JR Decision has real and significant implications for her substantive right not to be subject to torture and her right to non-refoulement protection.  She further complained that as her appeal before the Board is a rehearing, the Board erred in its approach.  The applicant claimed that there is minimum standard of procedural fairness required in the decision-making process. 

19.  In our judgment, the applicant’s intended grounds of appeal are unmeritorious. 

20.  On ground 1, the Judge did not make any findings on state acquiescence or involvement.  Assessment of evidence and risk is within the province of the Board.  The role of the court in judicial review is supervisory and it would only intervene if the Board made any error of law and/or if there is any procedural unfairness or other irregularities in the Board’s decision.  As with the Judge, we found none in this case. 

21.  On ground 2, whilst it is correct that the Judge did not address each of the grounds attached to the Form 86, the applicant had not advanced them at the oral hearing but instead asserted her ignorance of the Board’s Decision, which Judge then explained to her. 

22.  In any event, the matters raised in the sheet attached to the Form 86 (and the written submissions in this court) are only trite legal principles with no attempts to apply them to the case. 

23.  We agree with the Judge’s view that the applicant has not shown any error in the Board’s decision and we do not see any valid public law grounds that would justify the court’s intervention in the Board’s decision.

24.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 18 August 2022.