PHONTONG SALISA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2681/2019

[2025] HKCFI 3248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2681 OF 2019

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 be refused.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of Thailand who last arrived in Hong Kong on 7 May 2016 as a visitor with permission to remain as such up to 11 May 2016 when she did not depart and instead overstayed, and was arrested by police more than 1 year later on 12 September 2017. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Thailand she would be harmed or killed by her former husband over their domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Udon Thani, Thailand. After leaving school she worked as a street hawker and factory worker, married her husband and raised a family with 2 daughters in her home district.

3.  However, she soon found her husband to be of bad temper and abusive, and in 2005 she divorced him and brought her daughters to reside with her mother.

4.  In 2014 at her daughters’ requests the Applicant reconciled with her former husband and resumed their cohabitation without re-registering for marriage, but soon the Applicant found her former husband to still have violent temper in particularly when he was drunk, and after being beaten by him on several occasions, the Applicant in February 2015 decided to leave him by moving away to stay in her sister’s place. 

5.  However, one day in April 2016 her former husband came looking for her to demand her to return to live with him, and when she refused, he became furious and tried to grab her by force but was restrained by some passers-by that the Applicant was able to flee from the scene.

6.  As a result the Applicant became concerned for her safety, and as she was informed by her daughters that her former husband had come to ask them for her whereabouts with threats to kill her if she still failed to return to him, the Applicant decided that it was no longer safe to remain in Thailand, and so on 7 May 2016 she departed for Hong Kong where she subsequently overstayed, during which she met and formed a relationship with a local man out of which she later gave birth to a son, and upon her arrest by the police on 12 September 2017 she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 25 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 30 November 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her former husband upon her return to Thailand as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former husband to seriously harm or kill her other than some angry words and empty uttered to their children and repeated to the Applicant, that in any event it was a private domestic dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Thailand with a large population of 68 million people spread across a vast territory of more than 510,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Bangkok where it would be difficult if not impossible for her former husband to locate her.

9.  On 18 December 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to deal with it on paper based on the materials and information provided earlier by the Applicant to the Director and were in the hearing bundle before the Board. On 3 July 2019, her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her former husband over their domestic disputes but found no reliable evidence of any real intention of her former husband to seriously harm or kill her other than just angry words and empty threats uttered to third parties, and that in any event it was a private domestic dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Thailand as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds.    

11.  On 13 September 2019, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just stated that she wants to remain in Hong Kong to look after her son which cannot be accepted as any proper ground to challenge the Board’s decision, nor was she able to do so at the hearing of her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Thailand, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

14.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

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