YUSUK PRAWIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1689/2021

[2022] HKCFI 869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1689 of 2021

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 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 18 June 2020 (the “2020 Decision”).  The application was filed on 1 November 2021.  It is more than 13 months out of time.  Leave to apply out of time is required.

2.  The Applicant did not state his grounds of application or reasons for the delay in making the application in the Form 86 or supporting affirmation.  In his supporting affirmation, he attached a copy of the Decision and said that he wanted to apply for judicial review of the Decision and the Further Decision of the Director of Immigration (the “Director”) dated 3 October 2017 (the “Further Notice”).  The Further Notice is the subject matter of the appeal before the Board and the 2020 Decision. 

3.  The 2020 Decision of the Board is reviewable by judicial process but not the decision of the Director in the Further Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Further Notice was superseded by the Board’s 2020 Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also. 

4.  This Court has to determine: (1) whether to grant leave to apply out of time; and (2) if leave is granted, whether to grant leave to apply for judicial review.  Central to these two questions is whether the Applicant’s intended judicial review has any prospect of success.  It would be convenient to determine these two questions in the reverse order.

Background 

5.  The Applicant is a national of Thailand.  He arrived in Hong Kong on 28 July 2013 as a visitor but overstayed since 27 October 2013.  He was arrested by the police and charged with theft, possession of a dangerous drugs, breach of condition of stay and possession of an identity card relating to another person.  He was convicted and sentenced to prison.  He was discharged from prison on 8 September 2014.  Before his release from prison, he submitted written representations seeking non-refoulement protection claiming that he would be at risk of harm if refouled to Thailand.

6.  His non-refoulement claim was assessed on all three applicable grounds then available under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4].  By a Notice of Decision dated 4 May 2016 (the “Notice”), the Director rejected his claim.  His appeal against the decision of the Director in the Notice was dismissed by the Board on 14 October 2016 (the “2016 Decision”).

7.  About a year after the 2016 Decision was handed down, the Director issued a Further Notice on 3 October 2017 refusing the Applicant’s claim for protection under BOR 2 Risk[5] ground.  The Applicant appealed to the Board.  Three of the four applicable grounds under the USM had been considered and finally determined by the Board in the 2016 Decision.  Thus, that appeal is related solely to the BOR 2 Risk ground.  The appeal was dismissed by the Board on 18 June 2020 by the 2020 Decision.

The Applicant’s case

8.  The Applicant’s case presented before the Board in 2016 is that, if refouled, he will be at risk of harm from members of Dek Ban Rai drug gang (“DBR”) and a group of policemen affiliated with DBR because he had given information resulting in the imprisonment of members of DBR and in the group of policemen suffered financial loss.  The Applicant said he had taken part in drug dealing since he was 15 years old.  In 2010, drugs were planted in his bedroom by policemen to exert pressure on him to become a police informer.  The police officer who liaised with him was named Elder On.  As a result of his information, leaders of DBR and his supplier Nook were arrested and jailed.  He continued acting as informer for about ten more times. However, some policemen deliberately allowed DBR and Nook know that they had been betrayed by the Applicant.  When Nook was released from jail, Nook assaulted the Applicant.  Later, Elder On told the Applicant that there was a new source of danger, namely a group of corrupt policemen affiliated with DBR which had suffered financial loss because of the Applicant’s activities as an informer.  Elder On advised him to flee for his own safety.

9.  The Board rejected the Applicant’s claim that he was a police informant.  It did not believe the Applicant had been assaulted by Nook in late 2012.  The Board found there was no reliable evidence that the gang of corrupt policemen existed and were affiliated with DBR.  It could find no reliable evidence that the Thai government and/or state and/or other authorities in Thailand had acquiesced in the alleged ill-treatment of the Applicant; that the Applicant had suffered physical and/or mental ill-treatment of the requisite severity; that the alleged perpetrators ill-treated the Applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance; that the alleged ill-treatment had any relevance to the interest and/or benefit of the Thai government; that the Applicant had a well-founded fear of persecution for one or more of the reasons enumerated in Article 1A(2) of the 1951 Convention relating to the Status of Refugee (the “Convention reasons”); and that the state of Thailand was unwilling or unable to afford protection to the Applicant; or unwilling to help him for a Convention reason.  On the basis of these findings, the Board found the Applicant had failed to prove his entitlement to protection under the Torture Risk ground, BOR 3 Risk ground and Persecution Risk ground and dismissed his appeal.

10.  In connection with his claim under BOR 2 Risk ground, the Applicant submitted the following additional grounds:

(i)    If refouled, he will be at risk of being harmed or killed by “the opponent party”, ie DBR;

(ii)   The police will not help or offer him protection because they are under the influence of DBR;

(iii)  The police are corrupt and took money from DBR; if caught, the police will hand him over to DBR, who will ill-treat him;

(iv)  The Thai government will not help him;

(v)      His sister informed him that three persons had been to his home to look for him;

(vi)   His mother and uncle had reported the incident to the police, but the police advised him not to return home as the police could not give him 24-hour protection; and

(vii)  As a consequence, his life is in serious danger because DBR comprises of many persons who will all be looking for him.

Finding of the Board

11.  Except for points (v) and (vii), the above materials had been considered and rejected by the Board in the 2016 Decision.  In the hearing of the 2020 appeal, the Board explored the evidence with the Applicant.  The Applicant said that his home in Thailand belonged to his grandmother.   He was raised by his grandmother there but had not lived there since his grandmother’s death in 2010.  He said that his father had never lived in that house, while his mother was living in Hong Kong and did not return to live in Thailand permanently.  According to his non-refoulement claim form filed in 2015, the Applicant’s mother and sister were living in Hong Kong at the time.  Initially, the Applicant said no one lived in the house after his grandmother’s death.  Then he corrected himself and said he had no idea who was living there.  On such evidence, the likelihood is that the house was vacant, at least since 2013 when the Applicant came to Hong Kong.  The Applicant said since 2015 his mother returned to Thailand once a year to pay respect to the ancestors.  It was serendipity that when the three men visited his grandmother’s house, his mother and sister just happened to be there.  The Board considered his assertion that three men from DBR went to the house and asked his mother for his whereabouts implausible.

12.  On the basis of the Country of Origin Information, the Board found that sufficient state protection is available to the Applicant under the Thai Witness Protection programme set up by legislation.  The Applicant admitted that he knew under the programme, a protected witness would be given a change of identity, a new place to live, free accommodation and living expense.  Other than saying that the police were corrupt, he adduced no evidence or good reasons why the arrangement under the programme would not eliminate entirely or substantially the risk of harm of reprisal from DBR.  He adduced no evidence to justify a conclusion that there was a failure on the part of the Thai government to comply with its obligations in that respect or that he would be an object of adverse interest to the Thai government.  The Board found his failure to seek state protection was unreasonable.  It concluded that he will not face grave human right breaches on his return to Thailand; or that death would be a necessary or foreseeable consequence of refoulement.  Hence, the Board dismissed his appeal.

Merits of the intended judicial review

13.  The role 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

14.  In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Thailand. 

15.  Having rigorously examined the 2020 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; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant not credible and that he had failed to prove the factual basis to support of his case.  It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  The 2020 Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his 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.  The 2020 Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Merits of the application to apply for judicial review out of time

16.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  To obtain extension of time for making an application, he has to satisfy the Court that there are credible valid explanations for the delay. 

17.  In AW and Director of Immigration and William Lam[7], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined.  In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance:

(1)      length of delay;

(2)      explanation for the delay;

(3)      merits of the substantive application;

(4)      prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5)      whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

18.  By the time the Applicant filed his application, it was more than thirteen months out of time. The delay is very substantial.  He did not give any explanation for the delay.  The Court could have invited him to give an explanation.  For the same reason as given in the following paragraph, this is going to be a futile exercise and is unnecessary.

19.  As explained in the above sections, there is no prospect of success in the intended judicial review.  It must necessarily follow that the Applicant will suffer no prejudice if extension of time is not granted.  If granted, the proposed respondent will suffer prejudice having to incur costs and time to resist an application which is doomed to fail.  On the other hand, the access to court by other non-refoulement claimants will be delayed. Besides, the application does not raise any question of general public importance.  Hence, leave to apply out of time will not be granted.

Conclusion

20.  As the Applicant’s application for leave to apply for judicial review was late and no leave would be given for him to file it out of time, the application is refused.

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

[1] [2018] HKCA 549

[2] 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

[3] 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”)

[4] 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

[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[6] [2018] HKCA 524 at para 14(1)

[7] CACV 63/2015 (unreported) 3 November 2015