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HCAL 38/2022
[2022] HKCFI 1859
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 38 of 2022
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Khanthawat Jatuporn |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 5 January 2022 (the “Decision”).
2. The Applicant is a national of Thailand, now aged 27. She entered Hong Kong on 16 March 2020 as a visitor and was permitted to remain until 23 October 2020. She overstayed and surrendered to the authorities on 24 November 2020. On 6 August 2021, almost seventeen months after her first arrival, she raised a non-refoulement claim.
3. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 30 September 2021, the Director rejected her claims under all four applicable grounds.
4. She appealed to the Board against the decision of the Director in the Notice. On 5 January 2022, the Board issued the Decision dismissing her appeal. On 11 January 2022, she applied for leave to apply for judicial review of the Decision of the Board.
The Applicant’s case
5. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed that she would be killed by her ex-boyfriend (“MC”).
6. The Applicant received twelve years of education and has work experience in selling mobile phones and operating her own café shop. She started dating MC in 2014. MC was a plain-cloth police officer licensed to carry firearms. They each started seeing someone else in around 2020. However, when MC discovered the Applicant had a new boyfriend, he went to her home on 1 March 2020 to confront her. The Applicant admitted to having a new boyfriend. Then MC slapped her face three times and pushed her into a wardrobe. He threatened to kill her if she continued to see her new boyfriend. The Applicant suffered bruises on her right arm and right face.
7. The Applicant flew to Taiwan the next day, ie 2 March 2020 and after staying there for 14 days, she went to Hong Kong on 16 March 2020. She extended her stay in Hong Kong seven times because she did not want to go back to Thailand. Meanwhile, MC kept contacting her on Facebook and threatening to kill her. Then the Applicant lied to MC that she met a new boyfriend in Hong Kong in March 2021 in the hope that he would give up their relationship; but, to the contrary, MC threatened to kill her upon her return. Subsequently, the Applicant did meet a new boyfriend in May 2021 in Hong Kong. She is now all the more afraid of returning to Thailand.
8. The Applicant felt there was no purpose reporting MC’s threat and assault to the police because she believed the Thai police would take the side of MC as he is a fellow police officer.
The finding of the Board
9. The Board found the Applicant incredible and did not accept her account. It identified the following two major inconsistencies in her evidence which discredited her:
(1) In the screening interview held on 20 September 2021, the Applicant claimed that MC started threatening her in 2019, contrary to what she said but in her NCF that her dispute with MC started on 1 March 2020. The Board found it incredible that she would have failed to tell the Director about other abusive acts by MC towards her in 2019[5] if she was telling the truth;
(2) On her first surrender to the Immigration Department in around 2020, the Applicant told the immigration officer[6] that she wanted to go back to Thailand because there were too many COVID cases in Hong Kong, but changed her mind upon learning that there were cases in Thailand also. She did not tell the immigration officer then that she could not go back to Thailand because of MC’s threats.
10. The Applicant having failed to put forward any credible evidence to support the factual basis of her claim, the Board dismissed her appeal. The Board further found that even if her evidence were accepted, she would not be entitled to non-refoulement protection for two reasons. First, the last death threat from MC was given over nine months ago suggesting that with the lapse of time MC might have lost interest in pursuing her. Second, the Board found that internal relocation to other parts of the country, such as Samut Prakan or Udon Thani, would be a viable option to avoid the harm and risk. The Applicant accepted that even as a police officer, MC would be unlikely to be able to locate her if she moves to a rented flat. As an adult woman with twelve years of education and many years of work experience, it would not be unreasonable to expect her to relocate internally to avoid the perceived threats from MC.
Legal principles applicable to judicial review
11. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7]. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
12. The Applicant advanced four grounds of application in her Form 86. These grounds are mainly directed at the Director. For the benefit of the Applicant, they were treated as being directed at the Board as well. In her supporting affirmation, the Applicant exhibited a copy of the Board’s Decision, but did not advance any argument or evidence in support of her grounds.
13. The Applicant was unable to give particulars of her grounds. She said that she engaged lawyers to submit the application on her behalf and she signed the documents prepared by a law firm based on information provided by her. Her friend produced a name clerk of a legal clerk of Choy Yung & Co Solicitors, but no legal representative appeared on her behalf.
14. At one stage, the Applicant said she could not answer the Court’s question because she was suffering from Alzheimer. She said she had no medical evidence to support her condition and that she was treated with paracetamol. The Court may take judicial notice that paracetamol is the active ingredient of a very common pain relief known by the trade name of ‘Panadol’. Except from being unable to give particulars of her grounds, the Applicant was communicable and cogent in her conversation. Given the type of medication she said she had received for treating her condition and her performance in court, the Court was satisfied that she was not suffering from any disability which was sufficient to prevent her from properly conducting her application.
Ground (1) – She believed the Board reached the Decision wrongly; the Decision was not reasonable and fair as required by the Wednesbury test
15. This is a complaint that the Decision is irrational. However, the Applicant was unable to give particulars of the unreasonableness or unfairness she was complaining. She was explained the Wednesbury test. After much prompting, she argued that the Decision was unreasonable in that internal relocation was impossible because she had no money. This argument had been considered and rejected by the Board. Being an adult woman with twelve years of education and many years working experience as a sales person and café operator, she could readily find employment and it would not be unreasonable to expect her to relocate to other parts of Thailand. The Court would reconsider this complaint of irrationality in its overall scrutiny of the Decision.
Ground (2) – The Director “failed to give proper importance or weightage to the presence of state Acquiescence”
16. The Applicant alleged that she was “tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles”. The only evidence that the Applicant could possibly rely on as support for her argument is the fact that MC was a policeman licensed to carry firearm and her belief that MC would be accorded some privilege by officers of other law enforcement agencies in Thailand. She had said that she saw no point complaining about MC’s threat because she thought the police would side with MC. The evidence is that the threats and assaults were acts of MC in his private capacity arising out of his personal dispute with the Applicant which had nothing to do with the interest of the state or his execution of duty as a police officer. Even if another officer would side with MC, it would be the private act of that individual officer and not that of the Thai government. The Applicant had adduced no evidence that MC’s threats and assaults were inflicted at the behest or with the consent or acquiescence of his seniors, let alone with the authority of any law enforcement agencies. There was no issue of state acquiescence.
Ground (3) – The Director “failed to take such argument into account” or “give enough weight to such argument before reaching the Decision”; this is “a clean case of unfair attitude”; “failed to attain the high standard of fairness required by the Wednesbury test”
17. The Applicant could give no particulars of “such argument”. Furthermore, giving weight to evidence and arguments and making finding of fact are the functions exclusively for the Board. The Board alone assesses the evidence and makes finding of facts, which the court in a judicial review will not intervene, unless such finding involves error of law, procedural unfairness or the Decision is irrational. The Applicant’s complaint under this ground would be reconsidered in the Court’s overall scrutiny of the Decision.
Ground (4) – The Decision was irrational as the Board should have allowed her appeal
18. This ground is a replication of Ground (1), in respect of which the Applicant was unable to give particulars. In response to the Court’s invitation for elaboration on this ground, the Applicant replied that she had no objection to this ground because she was sentenced to jail for overstaying her tourist visa. The Court understood she had misdirected her mind to her imprisonment for overstaying her tourist visa, which was not the subject matter of this application. As she was unable to give particulars, the Court would reconsider this ground in its overall scrutiny of the Decision.
Overall scrutiny of the Decision
19. Having rigorously examined the Decision the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claims.
20. The Applicant’s claims are founded on her fear of harm and death likely to be inflicted by MC. The Board had carefully weighed the evidence and assessed the Applicant’s credibility. It found her incredible and did not accept her evidence about her fear and risk of harm. As the Applicant bore the burden of proof of her claim, such a finding was fatal. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM. This conclusion was further supported by availability of state protection and internal relocation.
21. The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. There were no such vitiating elements in the Decision. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
22. For the above reasons, leave to apply for judicial review was refused.
Dated the 22nd day of June 2022.
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( Allen LEE )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 22/6/2022
Khanthawat Jatuporn
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22/6/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18963/21/10/89/TH106
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1525/21 (formerly RBCZ 5000015/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [49] of Board’s Decision
[6] See [33] of Board’s Decision
[7] [2018] HKCA 524 at para 14(1)
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