BUNPAK REWADEE v. DIRECTOR OF IMMIGRATION

HCAL 2264/2024

[2025] HKCFI 744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2264 of 2024

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Bunpak Rewadee (“Applicant”) for leave to apply for judicial review of the decision of the Director of Immigration (“Director”) dated 26 September 2024 (“2024 DOI Decision”) in refusing the Applicant’s application to make a subsequent claim for non-refoulement protection (“Application”).

Background of the Applicant

2.  The Applicant is a Thai.  She was born on 15 July 1992 in Phetchabun Province, Thailand.  She received 14 years of education and had 8 years of work experience as an employee of an airline company and as the owner of a coffee shop.

The Claim

3.  In around March 2018, the Applicant borrowed 300,000 Thai baht (“Loan”) from a moneylender (“Creditor”). Under the terms of the Loan, the Applicant had to pay daily interest of 3,000 Thai baht and the principal would be due in March 2019.  The Applicant was unable to pay back the principal in March 2019 and the Creditor agreed to give her more time.

4.  In March 2019, the Applicant opened a coffee shop (“Shop”) in her home village.  Four months later, she shut down the Shop due to lack of business.  The Applicant stopped paying daily interest to the Creditor in around September 2019.

5.  In late September 2019, the Creditor asked the Applicant to pay back the Loan.  The Applicant only managed to pay back 30,000 Thai baht to him.  The Creditor took a picture of her identity card and threatened to attack her if she did not pay back the Loan.

6.  The Applicant fled to Saraburi the next day due to the Creditor’s threat but returned to her home one week later due to concerns over the safety of her family.

7.  In October 2019, two unknown men attacked the Applicant outside of her home.  They used a sharp object to cut her face, causing her to bleed.  It took her one month to recover.  The Applicant believed that the men were associates of the Creditor.  She made a police report but the police told her that it was a private matter and there was no evidence that the Creditor was involved.  The police said there was nothing they could do.

8.  In December 2019, an unknown young man (“Y”) went to the house of the Applicant and told her that she would be killed if she did not pay back the Loan.  The Applicant and her family were concerned of their safety, so they stayed away from their home.  The Applicant stayed with her friend in Saraburi peacefully for about 1.5 months.  After discussing with her friend, she decided to come to Hong Kong. 

9.  After the Applicant arrived in Hong Kong, her family returned to their own home.  They said that Y went to their home about once every three months.  Y said that the Applicant would be killed if she did not pay back the Loan.

10.  The Applicant claimed that she would be harmed or killed by the Creditor if she were returned to Thailand.

Procedural history

11.  The Applicant arrived in Hong Kong on 23 February 2020 as a visitor.  Her permission to remain was last extended to 24 March 2020.  She overstayed and was arrested on 22 April 2021. By a written representation of 27 April 2021, the Applicant lodged her claim for non-refoulement protection (“Claim”).

12.  The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

13.  By a decision dated 24 August 2022 (“2022 DOI Decision”), the Director refused the Claim.  The Applicant filed an appeal/petition to the Torture Claims Appeal Board/Non-Refoulement Claims Petitions Office (“Board”) on 2 September 2022.  On 17 April 2023, the Applicant filed a Notice of Withdrawal with the Board to withdraw the appeal. By a letter dated 17 April 2023, the Board informed her that as she had withdrawn the appeal, the 2022 DOI Decision remained and the Claim became finally determined.

14.  On around 2 August 2024, the Applicant wrote a letter to the Director to apply to make a subsequent claim for non-refoulement protection.  By the 2024 DOI Decision, the Director refused the Application.

15.  On 26 November 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the 2024 DOI Decision.  The Applicant filed her supporting affidavit/affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named the Director as the proposed respondent and the interested party.

The 2022 DOI Decision

16.  The Director noted that the low intensity and low frequency of past ill-treatment from the Creditor was indicative of a small future risk of harm upon the Applicant’s return. Further, the injuries she suffered from the Creditor were not serious.  The Creditor and his associates had the opportunities to seriously harm or kill the Applicant but they refrained from doing so.  The Applicant’s family in Thailand had never been physically harmed by the Creditor.  This showed that the Creditor did not really intend to kill or seriously harm the Applicant.  They only wanted to press her to repay the Loan.

17.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Thai government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary.

18.  The Director further found that internal relocation would be viable to the Applicant.  If the Applicant moved to Udon Thani or Chiang Mai, the Creditor would have great difficulties in locating her.  The Director did not accept that the Creditor had the necessary power or resources to track her down in other parts of Thailand outside of her local area.  After considering her age, education and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

19.  For the reasons set out in the 2022 DOI Decision, the Director rejected the Claim.

The 2024 DOI Decision

20.  On 12 August 2024, the Director referred the Application to the Duty Lawyer Service (“DLS”).  After the DLS indicated its refusal to provide legal representation for the Application, the Director invited the Applicant to provide further information for the Application.

21.  On around 29 August 2024, the Applicant wrote a two-page letter to the Director in Thai whereby she essentially repeated the same threat from the Creditor and added that her cousin had successfully negotiated a settlement with the Creditor.  The Applicant claimed that she wished to remain in Hong Kong while waiting for her cousin to come up with the money to pay back the Loan under the settlement agreement.

22.  Taking everything into account, the Director found that there had been no significant change of circumstances. The Director also found that the change, when taken together with the material previously submitted in support of the Claim, would not give the intended subsequent claim a realistic prospect of success.  Applying section 37ZO(2) of the Ordinance, the Director refused the Application.

Legal principles applicable to judicial review

23.  In a judicial review, the court does not step into the shoes of the decision makers.

24.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that the court should not usurp the role of the Director and would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Director.

25.  In Po Fun Chan v Winnie Cheung (supra), the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

26.  Section 37ZO of the Ordinance provides that:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

27.  After considering the Application in accordance with the provisions of section 37ZO of the Ordinance, the Director refused the same by the 2024 DOI Decision.

28.  In the Form 86, the Applicant did not put forward any grounds for her intended judicial review.

29.  In the Supporting Affirmation, the Applicant exhibited the 2024 DOI Decision and her statement on grounds for her intended judicial review application (“Statement”). 

30.  In the Statement, the Applicant only reiterated that her life was still in danger in Thailand.  Her debt was still outstanding and the Creditor had made persistent threats to her.  She said that she lacked financial resources to relocate to other parts of Thailand and the Creditor could easily trace her wherever she relocated in Thailand.  It would be difficult for her to find a stable job while in constant move to avoid the Creditor.  Her mental health would also be compromised due to the constant fear of being seriously harmed or even killed by the Creditor.  She did not believe that the authorities in Thailand would or could protect her.

31.  She did not produce any documents in the Supporting Affirmation to support her case.  All the matters raised in the Statement had previously been considered by the Director in the 2022 DOI Decision and the 2024 DOI Decision. (§8 of the 2024 DOI Decision)

32.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Director had erred in the 2024 DOI Decision, or in what way was the 2024 DOI Decision unfair or unreasonable or that the Director had acted procedurally unfair or irrational, or how did the Director take into account irrelevant matters or fail to take into account relevant matters.

33.  The Applicant had attended the court hearing scheduled for 21 January 2025.  She was dissatisfied with the Director repeatedly refusing her claims and not keeping her informed of the progress of her case.  However, she was unable to identify any error of law, procedural unfairness or irrationality in the 2024 DOI Decision.   

34.  The Director found that the Applicant had failed to show a significant change of circumstances since the 2022 DOI Decision or any change, when taken together with the material previously submitted in support of the Claim, would give her subsequent claim a realistic prospect of success. 

35.  It was on such basis that the Director refused the Application.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the 2024 DOI Decision or procedural unfairness at any stage of the proceedings for the Application.  The 2024 DOI Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

36.  Having considered the 2024 DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the 2024 DOI Decision, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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