LEUNG, PLOYNARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 853/2024

[2024] HKCFI 2272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 853 OF 2024

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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 18 October 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which is 18 January 2023. Her application was filed on 29 May 2024, which is more than 1 year and 4 months. This issue will be dealt with below.

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with her application on paper.

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 44, is a national of Thailand. She came to Hong Kong as a visitor on 23 October 2019. She overstayed since 23 November 2019 and was arrested by police and referred to the Immigration Department on 19 May 2020. She lodged her non-refoulement by written significations. She claimed that, if refouled, she will be harmed or killed by a man named Phongsakorn because she knows that he was a drug dealer and she was unable to repay a loan from him.

5.  The applicant’s husband borrowed 2 million of Thai currency, which is equivalent to about HK$500,000. He spent the money on chickens fighting gambling and lost. Her husband then passed away. Phongsakorn demand repayment of the loan. She was unable to pay and they had quarrels over this issue from time to time. She was shot once when she was a pillion passenger. Fortunately, the shot missed her. However, she did not see the shooter. She was told that the shooter was a subsidiary of Phongsakorn. Bur there is no evidence to prove this. She was advised to leave Thailand for her safety. She took the advice.

The Director’s Decision

6.  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”).

7.  By way of Notice of Decision dated 29 January 2023 (“the Director’s Decision”), the Director dismissed the applicant’s claim. The Director found that: (i) the low frequency of the past threats from Phongsakorn is indicative of a small risk of h arm upon her return to Thailand [11]-[13]; (ii) state protection will be available to her upon her return [14]-[19]; (iii) internal relocation is viable [18]-[23].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 31 May 2022, the Board conducted an oral hearing.

9.  Having considered the applicant’s evidence, the Board made the findings below:

“43. I have accepted that the Appellant’s boyfriend/ex-husband may once have owed money to a drug dealer called Phongsakorn. Having considered all the evidence, I do not accept the Appellant’s claims to have been shot at or pursued by someone called Phongsakorn. I do not accept that the Appellant left Thailand or that she has sought protection in Hong Kong for any of the reasons she has claimed. I am not satisfied, therefore, that there is real chance or a real risk the Appellant will suffer from amount to torture, CIDTP, a risk to her life or persecution from a drug dealer named Phongsakorn, or any other person upon her return to Thailand.”

10.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

11.  The applicant has filed Form 86 dated 29 May 2024 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant did not raise any specific ground in support of her application. Nor did she explain her late application.

DISCUSSION

13.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

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.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

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

CONCLUSION

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