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HCAL 2489/2024
[2025] HKCFI 1176
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2489 of 2024
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BETWEEN
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Ngoenkam Nattapong |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 16 December 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 25 October 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 July 2023 (the “Notice”), refusing his non-refoulement application.
2. The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered that the application could be justly determined on paper without an oral hearing.
Background
3. The Applicant is a Thai national. He last entered Hong Kong as a visitor on 21 March 2023. He overstayed since 21 April 2023 and surrendered to the Immigration Department on 25 April 2023. On 3 May 2023, he lodged a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, the Applicant claims that if returned to Thailand, he will be harmed or killed by a moneylender for being unable to settle his outstanding loan.
5. The Applicant, now aged 37, was born in Donyai, Bangphae, Ratchaburi, Thailand. He is single. He had received nine years’ formal education and had seven years’ working experience as a salesperson and in operating his own business.
6. The Applicant claimed that in April 2022, he borrowed a sum of 200,000 Thai Bhat (“THB”) at a monthly interest of 20,000 THB from the moneylender to set up a business selling seafood and planting trees. The moneylender is a powerful and influential person. He had triad background and is a grandson of a Thai army general. The Applicant’s business failed and he was unable to pay interest after January 2023.
7. In late March 2023, he came to Hong Kong to pay homage to the gods in Wong Tai Sin Temple and Che Kung Temple and for shopping. While in Hong Kong, he learnt from his friends that the moneylender had threatened to harm him because he had failed to make payments for several months. Then he received a threatening Facebook message from the moneylender that his fingers would be chopped off if he did not settle the loan. The moneylender also sent him video clippings showing how he had fisted and kicked his debtor and had disfigured someone with a weapon.
8. The Applicant believes he could not access state protection because the dispute between him and the moneylender is private in nature and the moneylender is a grandson of a Thai army general. He does not believe internal relocation viable, as the moneylender could locate him throughout the country through his powerful network.
The finding of the Board
9. The Applicant testified before the Board. The Board seemingly accepted his evidence and found this is a clear case of loan dispute between two private citizens, which is not a ground for protection under the USM. On the evidence, the moneylender had done nothing to chase the Applicant for repayments of the loan until the end of March 2023 after the Applicant had left Thailand. Apart from uttering verbal threats, the moneylender had done nothing to the Applicant indicating that he was serious in carrying out the threat. Hence, the Board found the moneylender’s threat was merely a means to pressurize the Applicant to repay the loan, and the moneylender had no intention to carry it out.
10. The finding that this case is one of loan dispute between two private citizens is significant. It show that the ill-treatment inflicted in the past and to be inflicted in the future lacks involvement, active or otherwise, by a public official or other person acting in an official capacity and that the feared ill-treatment did not arise out of a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol. Accordingly, the Board found the feared ill-treatment does not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance and the Applicant is not protected under the Torture Risk ground or Persecution Risk ground. For the same reason, the Board did not consider the Applicant would be subjected to the kind of ill-treatment contemplated under Torture Risk ground or under BOR 3 Risk ground. It also found no evidence to support a claim under BOR 2 Risk ground.
11. On the basis of objective country of origin information (“COI”), the Board accepted that while there are police failures, deficiency and corruption in Thailand, the Thai government has taken steps to strengthen its anti-corruption policies, legislations, and enforcement in recent years and anti-corruption has been a core policy focus of the current government. Hence, the Board found adequate state protection is available.
12. The Board also found that the risk faced by the Applicant is localized and given his age, education and experience, it found the Applicant could have no difficulty to stay in another province to avoid the harm and risk of harm from his moneylender.
13. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the decision in the Notice.
Legal principles applicable to judicial review
14. 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[5].
Grounds for judicial review
15. In his supporting affirmation, the Applicant stated that he was not satisfied with the Decision. He complained that:
“It is deeply dishearting that the immigration officer rejected my claim without conducting a proper inquiry, especially considering the significant geographical distance between the place where my problems persist and the location where the decision was made.”
16. The Board briefly stated its conclusion on its finding of availability of state protection and feasibility of internal relocation in paragraphs 40 and 50 to 52 respectively. It was brief. It did not quote the source of the information on which its findings were based. It is not satisfactory. However, it is obvious from a reading the Director’s Notice, that the information was consistent with those contained in the very detailed analysis of the COI considered by the Director. The COI considered by the Director are all from authoritative and credible sources, including the 2022 Country Report on Human Rights Practices: Thailand Bureau of Democracy, Human Rights and Labour published by the US Department of States, DFAT Country Information Report Thailand published by the Foreign Affairs and Trade of the Australian Government, Thailand risk report published by GAN Integrity, Corruption Perceptions Index 2022 published by Transparency Internal, The World Factbook – Thailand published by the US Central Intelligence Agency, and other articles and reports from credible news agencies. The Board must have either adopted the Director’s finding in his Notice which it is entitled to do or independently extracted the information from the COI. The way these two issues were dealt with cannot be said to be satisfactory. However, the blemish does damage the reliability of the Board’s finding.
Overall scrutiny
17. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is 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 assessed the Applicant’s claim on the basis of his case as he asserted. It was on that basis that the Board found the Applicant had failed to establish that there are substantial grounds for believing that he would be liable to be subjected to ill-treatment if he is refouled. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. 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 Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The proposed judicial review has no realistic prospect of success.
Conclusion
18. For the above reasons, the leave application is refused.
Dated the 28th day of March 2025
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( Seline Sze )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 28/03/2025
Ngoenkam Nattapong
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28/03/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM24490
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 582/23 (Formerly RBCZ 5000538/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] 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
[2] 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”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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