PRABCHANA SAKULRAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 475/2023

[2025] HKCFI 1193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 475 OF 2023

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Thailand who arrived in Hong Kong on 3 March 2020 as a visitor with permission to remain as such up to 3 April 2020 when she did not depart and instead overstayed, and more than 1 year later on 7 September 2021 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Thailand she would be harmed or killed by her stepfather who had sexually abused and raped her in the past. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in T Tahsawane, A Muang, Surin, Thailand. After leaving school she worked in the factory in her home district to make her living, and continued to reside with her mother and her mother’s partner whom the Applicant addressed as her stepfather after her mother had divorced her father.

3.  However, whenever her mother was not in the house, her stepfather would try to sexually abuse her by touching and kissing her forcefully, and on one occasion in 2013 he beat her during an argument between them, and then tried to rape her but the Applicant managed to put up a strong fight and then fled from the scene.

4.  As the abuses became more frequent, the Applicant in 2017 moved to Bangkok where she ran a restaurant with a relative, and in March 2019 when she returned to her mother’s home to visit her, and on one occasion during her mother’s absence from the house, her stepfather forcefully restrained her and raped her, and later when she told her mother thereof, her mother did not believe her, and so the Applicant left to return to Bangkok.

5.  Shortly thereafter her stepfather came to the Applicant’s home in Bangkok to threaten her not to tell anyone of the rape, and to avoid his persistent threats and harassments, the Applicant decided to leave the country by departing for Hong Kong on 3 March 2020 when she subsequently overstayed and then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 29 December 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 8 March 2022 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”).

7.  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 stepfather 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 stepfather to seriously harm or kill her, that in any event in the absence of 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 69 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 Chiang Mai or Phuket where it would be difficult if not impossible for her stepfather to locate her.

8.  On 17 March 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 21 February 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her stepfather that caused her to leave her country to come to Hong Kong to seek protection, that even if her account were true that there was no reliable evidence of any real intention of her stepfather to seriously harm or kill her, and that in any event in the absence of 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 that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 27 March 2023 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 her supporting affirmation of the same date in which she just stated that her claim was dismissed without any valid reason but without any further details or particulars or elaboration as to how it was so. As such, and in the absence of any error of law or irrationality or procedural unfairness in his 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.

11.  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.

12.  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 even if 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.

13.  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.

14.  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.

15.  As the Court has recently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, accordingly I direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with a sealed order to the Applicant in Thailand.

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