Mongkhon Sawit v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 771/2018

[2020] HKCFI 1624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 771 OF 2018

BETWEEN

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 submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing his claim of non-refoulement protection.

2.The applicant, born in 1958, is a national of Thailand.  He arrived in Hong Kong on 30 December 2011 as a visitor and was permitted to remain until 13 January 2012.  He did not depart and overstayed since 14 January 2012.  On 10 April 2015, he was arrested by the police and handed over to the Immigration Department.  He then lodged a non-refoulement claim and was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at [7-9] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, he would be harmed or even killed by a person called Boonlerd who lost in a district councillor election, in which the applicant was the lead assistant to another candidate who won the election in his local village.  The applicant heard from a friend that the aggrieved election candidate wanted to kill him because of his role in the election.  Boonlerd’s people later came to the applicant’s home to threaten to harm him.  He therefore left the village for Bangkok before he came to Hong Kong.  In Hong Kong, he learnt from a relative that Boonlerd is still looking for him.  Since this person is rich and influential, the applicant believes he will be killed if he returns to Thailand.

The Director’s Decision

4.By notice of decision dated 22 February 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that his claim was not substantiated.  The decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4]. Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He found that state protection is available to the applicant and internal relocation is a viable option for him. 

The Board’s Decision

5.The applicant lodged an appeal/ petition to the Board against the Director’s decision.  He was notified of the date of the hearing before the Board.  He failed to attend the hearing before the Board scheduled on 22 November 2017.  The Board wrote to him requesting an explanation.  He provided no explanation for his absence.  As a result, the Board proceeded to consider his application in his absence.

6.By a decision dated 22 December 2017, the Board rejected his appeal and confirmed the Director’s decision.  His case was rejected on all applicable grounds.  The Board gave detailed reasons for rejecting the claimat [21-32] of its decision.  In a nutshell, the Board found that as the applicant was absent in the hearing, it was hence unable to question him for details of his asserted events in Thailand. The Board would have wished to ask him why he felt the need to flee Thailand and why he spent so long in Hong Kong without claiming protection given his assertion that he fled Thailand in fear of his life [29-30].  Although the applicant was interviewed by an immigration officer, that interview was brief and no attempt was made to test the assertions contained in the very brief written statement of the applicant.  No credence could be attached to his mere assertions [31].  Apart from the undisputed fact that he is a national of Thailand, the Board found that the applicant had not established any of the facts he asserted [32].  It finally concluded that nothing in the background information suggested that the applicant faces a real risk of any harm at all [34].

Application for leave to apply for judicial review

7.The applicant filed his Form 86 on 3 May 2018 for leave to apply for judicial review of the decision of the Board dated 22 December 2017.  He did not request an oral hearing.

8.By a letter dated 11 May 2020 sent to the address for service provided by the applicant in the Form 86, the court invited the applicant to submit information including any submissions that he would like to make.  The letter was returned through postal service marked “incomplete address/ no such address”.  Another letter dated 8 October 2020 was again sent to the applicant’s address last reported to the Immigration Department, inviting him to make any submissions that he would like to make.  The letter was also returned through postal service marked “incomplete address/ no such address”. 

9.The applicant however filed an affirmation (dated 24 November 2020) on 4 December 2020. He stated that he wants to “cancel his application” for stay in Hong Kong and go back to his place of origin for reasons that life (in Hong Kong) is difficult and he is tired. It appears that he might be applying to withdraw his application for leave for judicial review. For reasons to be given below and when the applicant did not ask for an oral hearing, I will proceed to consider the application on the papers.

10.While the applicant did not name who was the respondent in his Form 86, he named “Immigration Department” as the respondent in his affirmation support and attached the Board’s decision in it.  It is apparent that he is asking to judicially review the decision of the Board and the application will be considered on this basis.

11.In his Form 86 and affirmations, the applicant stated that he is not able to contact his family in Thailand and his daughter and her mother are always sick, therefore he wants to stay in Hong Kong to take care of them. According to [6.1] of the decision of the Director, the applicant’s girlfriend gave birth to their daughter in 2009. His girlfriend and daughter are now living in Hong Kong.

12.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

Discussion

13.The relevant principles regarding non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

Application out of time

14.It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court will have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

15.The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

16.In the present case, evening counting only from the 3-month limit the application was late by about 1 ½ months.  The delay is not a short one.  The applicant did not request extension of time or give explanation for the delay.  I cannot find any good reason for the undue delay.  The delay is inexcusable.

Merits of the intended application

17.Nevertheless, I will also consider the merits of the intended judicial review.  Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

18.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it did not accept the primary facts asserted by the applicant.  The very limited statement provided by him could only stand as mere assertion unsupported by explanations and details.  The Board noted that the applicant appeared to know virtually nothing about the losing candidate when asked by the immigration officer [28].  It further wondered, quite properly in my view, when the applicant did not suggest that he had any difficulties to stay in the capital city, why he felt the need to flee Thailand [29]; and why he had spent so long in Hong Kong without claiming protection before he was arrested [30].  On the factual findings, it concluded that he is not facing a real risk of any harm at all.

19.As mentioned, the assessment of risk and findings of primary facts are within the province of the Board (and the Director), this court will not interfere with the decisions unless there is a public law ground for the court to do so.

20.The grounds raised by the applicant have not complained of any procedural irregularity, unfairness or unreasonableness of the Board.  There cannot be any complaint that the Board considered the application in the absence of the applicant when he failed to attend the hearing and did not offer explanation for his absence.  On the materials and evidence before the Board, its findings are entirely proper with solid basis in support.  The applicant’s desire to stay in Hong Kong to take care of his girlfriend and his daughter, with sympathy of the court, cannot amount to a valid ground for judicial review.

21.The applicant delayed in lodging the claim for protection after he came to Hong Kong.  Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  It could be taken into account as damaging the credibility of the claim.

22.Further, even if one gives the claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.  There was no valid reason why his enemy would target the applicant and still wish to pursue the applicant after so many years.

23.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

24.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, irrational findings, 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.

Conclusion

25.For the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review.  In the absence of good reason for extending the period to make the application, I refuse to grant time extension. Instead of giving him leave to withdraw his application, I dismiss his application for leave to apply for judicial review.

Dated 30 December 2020

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