NATTAPON CHAISONGKAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3164/2019

[2025] HKCFI 1412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3164 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 July 2020 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant did not request a hearing. I shall deal with his application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 40, is a national of Thailand. He had a wife, who is a Thai and also a Hong Kong resident. He stayed in Hong Kong as a dependent until 13 February 2013. He was convicted of robbery, for which he was sentenced to 2 years and 8 months’ imprisonment. He was also imprisoned for another offence of illegally working in Hong Kong. He lodged a non-refoulement by written signification. He claimed that, if refouled, he would be harmed or killed by his creditor called Contee because he had borrowed 5 million Thai currency from him and he was unable to repay the loan.

5.  According to the applicant, he was working for a loan shark called Contee. Later, he set up his business as a loan shark by borrowing money from Contee. His business did not yield profit and he was unable to repay his debt to Contee. Contee sent his subordinates to him to collect the debt. They ransacked his home and attacked him by bare hands. He did not suffer serious injury and he did not receive medical treatment. Also, he did not report the matter to police. The subordinates had also came with guns and shot at the air to threaten him. They threatened to kill him if he did not repay the loan. He moved to live in his friend’s home. He met a Thai woman and also a Hong Kong resident, and they got married. His friend told him that Contee was still looking for him. He came to Hong Kong to avoid Contee.

6.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 February 2020 (“the Director’s Decision”).

The Director’s Decision

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

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

b. 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”);

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

d. 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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and low frequency of past ill-treatment from Contee is indicative of a low future risk of harm if he returns to Thailand; that state protection will be available; and internal relocation is viable. [15]-[30]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 22 June 2020, the Board conducted an oral hearing for his appeal.

10.  Having considered the evidence, the Board found that the applicant had relied on 2 stories for his 2 claims made at different time, one was that he fled Thailand for Hong Kong because he was a target of manhunt by Muslims in his province or district; the other was his loan from Contee, which he was unable to repay. He had not given any explanation for not mentioning his first story when he made his second claim. [82]-[91] The Board found that he had abandoned his first story [85] and his 2^nd story was unreliable. [91], which means that the applicant has no factual basis in support of his claim.

11.  The Board dismissed his appeal and confirmed the Director’s Decision.

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

12.  The applicant has filed Form 86 dated 25 October 2020 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant stated that the Board’s Decision was based upon irrelevant information; that it had neglected his threat upon his return to Thailand; and that it had neglected the information provided by him.

DISCUSSION

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.  Those ground under paragraph 13 are bare allegations without any evidence in support. The applicant has raised no valid ground to challenge the Board’s Decision. There is no reason for this Court to interfere with the Board’s finding of the facts.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.