SOMRIT TANAPOST v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 673/2024

[2024] HKCFI 2066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 673 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 7 March 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 22 July 2024.

The applicant

3.  The applicant, aged 26, is a Thai. He last entered Hong Kong as a visitor on 15 February 2020 and overstayed since 17 March 2020. The applicant was arrested by the police on 10 July 2022. He was subsequently charged for overstaying and possession of dangerous drugs. The applicant made a non-refoulement claim on 29 September 2022. The claim was made on the basis that, if refouled, he would (i) not be accepted by his mother because he was a transgender and (ii) be forced by the Thai government to serve in the army.

4.  According to the applicant, he liked to act like a female since childhood. During puberty, he started to take contraception pills to suppress his male hormone and would dress like a female. His relatives and his neighbour were unsatisfied with the applicant’s behaviour, which made the applicant very stressful. By the age of 19, the applicant moved away from his home. At around the same time, he also started a relationship with his first boyfriend.

5.  In 2018, the applicant received a request to participate in army selection. He applied for extension for two times by reason that he was still at school. In 2020, he came to Hong Kong to stay away from his family and to relieve his sorrow for breaking up with his boyfriend. In about April 2020, he was informed by his mother that a summons was issued against him for failing to take part in the army selection and he was requested to report duty. In around August 2020, two soldiers went to the applicant’s home asking for his whereabouts. They returned a month later and again in April 2021.

6.  The applicant was worried that he would be forced to conscript upon return. He feared not only the physical demand in army training, but also that he might be bullied because of his feminine behaviour. He would also face imprisonment of not more than three years for avoiding conscription.

7.  The applicant was of the view that he could not seek protection from the police because they would treat his matter as a family dispute and would not take it seriously. He also believed that the voluntary organisations would be unable to assist him regarding conscription. The applicant considered internal relocation not viable as well because he had no financial capability to move elsewhere and that a summons had already been issued against him.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Notice of Decision dated 3 February 2023 (“the Director’s Decision”).

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the past behaviour of his mother and the Thai government indicated that the risk of harm was not as imminent as he claimed [11] - [12]. In fact, the country of origin information (“COI”) indicated that transgender could be exempted from conscription and that it was merely his speculation that he would be bullied for his feminine behaviour while serving in the army [13] - [14]. Furthermore, his delay in seeking non-refoulement protection was also inconsistent with a person who was genuinely in fear of being harmed [15].

11.  In any event, (i) state protection would be available to him [17] - [20]; (ii) internal relocation would be viable [16], [21] - [22] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [23] - [28], Persecution risk [29] - [35] or Torture risk [36] - [40].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 11 January 2024, the Board conducted an oral hearing.

13.  The Board accepted the core of the applicant’s evidence, i.e. he used to dress like a female and his homosexuality [32]. However, the Board did not accept that the applicant’s mother or the Thai government would seriously harm or kill the applicant upon his return to Thailand.

14.  Regarding the applicant’s fear towards his mother, the Board found that her past behaviour indicated that she had no real intention to seriously harm or kill the applicant. Furthermore, the matter between the applicant and her mother was private in nature, with no evidence showing that his mother was affiliated to the Thai government or had means to locate the applicant anywhere within Thailand [36] - [41], [63] - [65].

15.  In relation to the applicant’s fear that he would be arrested and be forced to conscript, the Board rejected that there was a summons issued against him due to lack of documentary proof [44] - [45]. Furthermore, the applicant’s claim about soldiers looking for him at his home was based on hearsay and that there was no evidence indicating that they were still pursuing him after April 2021, so that the risk of harm was not as imminent as he claimed [46] - [48], [55]. In the meantime, the applicant’s fear of being discriminated or bullied while serving at the army was based entirely on speculation [50], [82]. In any event, there was insufficient evidence indicating that he would suffer serious harm or be killed by the government as the maximum penalty for avoiding conscription was just three years imprisonment [51] - [53].

16.  Upon consideration of the COI, the Board found that state protection would be available to the applicant if he resort to it [70] - [76], [94] - [95]. In particular, the Board noted that transgender could be exempted from conscription and there was also way to reduce the service period [77] - [81]. The COI further indicated that transgender were not discriminated in Thailand [86] - [93].

17.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [26] - [31], [56] - [62], [96] - [101], BOR 2 and BOR 3 risk [102] - [110], [124] - [129] or Persecution risk [111] - [123]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

18.  The applicant has filed Form 86 on 26 April 2024 for leave to apply for judicial review of the Board’s Decision.

19.  The applicant attached a statement of grounds to his affirmation in support of his application. I shall summarize the grounds as below.

(1)  The Board’s Decision is written in Chinese, which he does not understand. He is therefore unable to understand the reasons for refusing his application or his appeal.

(2)  He did not have the translation service for his appeal.

(3)  He was not provided with legal assistance for his appeal.

DISCUSSION

20.  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).

21.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that he understood the Board’s Decision. He further said that he would not say the Board was wrong, but he did not agree with it.

22.  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.”

23.  As to the applicant’s grounds in support of his application, they fail. The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

24.  The lack of legal representation is also not a valid ground to challenge the Board’s Decision. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

25.  Therefore, there is no valid reasons to challenge the Board’s Decision.

26.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

27.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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