Masanthiah Teerapong v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1386/2018

[2021] HKCFI 822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1386 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 submissions by the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 9 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Thai national. Between 1996 and 2014, he had stayed in Hong Kong as a dependent of his mother and his wife and as a visitor. His last entry to Hong Kong was on 9 October 2013 on a visa. He overstayed and he surrendered to the Immigration Department on 5 June 2014. He has a long criminal records in Hong Kong. But this is not relevant for this application.  On 2 September 2014, he lodged his non-refoulement claim with the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by Yai, a senior leader of a political party named Thai Rak Thai (“TRT”) because he defalcated the party money.  He was a supporter of TRT, founded by former prime minister, Thaksin Shinawara.  When he was in Bangkok, a TRT leader Yai gave him THB 300,000 to buy votes for TRT at an election. He used the money for the repairs of his father's house.  Yai and his followers knew about this and they pressed him for the return of the money or he would be killed. He fled to Hong Kong.  Details of the incidents are set out in paragraph 11 of the Board’s Decision.

The Director’s Decision

6.The Director considered his application in relation to the following risks:

1.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

2.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

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

4.  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”).

7.By Notice of Decision dated 27 December 2017 (“the Director’s Decision”), the Director refused his claim as it was not substantiated.  The Director found that the level of risk of harm from Yai and his people upon his return to Thailand was assessed to be low [14]; that state protection was available to him [17] and internal relocation was an option open to him [18].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 28 June 2018.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out below.

(1)   The Board dismissed the applicant’s evidence on the facts in support of his application because his evidence to the immigration officer was inconsistent with his evidence before the Board and that the evidence was implausible, for which the applicant was unable to offer any satisfactory explanation.  The Board concluded that he had fabricated these claims so as to create his basis upon which to apply for non-refoulement protection. See paragraphs 31-41 of the Board’s Decision.

(2)   The Board did not accept that he had a real risk of proscribed harm if he returned to Thailand. [42]

(3)   For the reason that his factual evidence was not accepted, the Board rejected the applicant’s claim on Prosecution risk [47], Torture risk [49], BOR 3 risk [51] and BOR 2 risk [53]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 13 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said the Board did not consider the following:

(1)   his wife and his son are Hong Kong permanent residents;

(2)   no lawyer was provided for his advice;

(3)   the Board decided the case on assumption, without considering his evidence;

(4)   in view of the evidence, it is not up to the Board to say that he had no case.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… … 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.”

14.On the question of whether the applicant is entitled to rely upon humanitarian or compassionate ground because his wife and son are Hong Kong permanent residents, the Court of Final Appeal in Comilang, Milagros Tecson & others v Director of Immigration [2019] HKCFA 10 held:

“90. The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11.”

The same rationale applies to the applicant.

15.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

16.Grounds (1) and (2) fail.

17.It is apparent that the Board had considered the applicant’s evidence and it had set out the questions put to him and his answers in paragraph 33-40 of the Board’s Decision. The Board has given its reasons for its decisions. His grounds (3) and (4) also fail.

18.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

20.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 31^st day of March 2021

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