AONSRI PATTAMAWAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 193/2024

[2025] HKCFI 888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 193 OF 2024

_____________

BETWEEN

_____________

_____________

J U D G M E N T

_____________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 5 May 2023 of the Torture Claims Appeal Board (“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 expired on 5 August 2023. Her application was filed on 19 January 2024. The delay is more than 5 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 33, is a national of Thailand. She arrived in Hong Kong on 25 February 2020 as a visitor and was allowed to stay until 26 March 2020. She overstayed and surrendered to the Immigration Department on 24 February 2022. She lodged the non-refoulement claim by written signification on the same day. Her claim is on the basis that, if refouled, she will be harmed of killed by her ex-boyfriend Phokai Virote because of their previous relationship.

5.  According to the applicant, she had quarrels with her ex-boyfriend and he assaulted her, even in public, from time to time, on average twice a week. After the assault, she went to see a doctor, who gave her some medicine and she recovered within one month. Their relationship broke up because her ex-boyfriend had another girlfriend. His new girlfriend was jealous and she had once assaulted her when they met on the street. Her ex-boyfriend told her to move out of the district and he would kill her if he saw her again. Later, she had another boyfriend from Hong Kong. She came to Hong Kong to see her boyfriend. Details of her story are set out in paragraph 6 of the Notice of Decision dated 16 June 2022 (“the Director’s Decision”).

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 the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the risk of being harmed or killed by her ex-boyfriend is very law; (ii) state protection is available; and (iii) internal relocation is viable. [10-22]

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 6 April 2023, the Board conducted an oral hearing.

9.  Having considered the applicant’s evidence, the Board agreed with the Director and found that the applicant had failed to establish that she will be harmed or killed if she is refouled to Thailand. [87]

10.  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 19 January 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.

DISPOSITION

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.