Chaisan Thidarat v. Torture Claims Appeal Board

HCAL 881/2021

[2021] HKCFI 2154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 881 of 2021

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 64-year-old national of Thailand who arrived in Hong Kong on 4 October 2009 with permission to remain as a visitor up to 3 November 2009 when she did not depart and instead overstayed, and on 4 March 2011 she was arrested by police for breaching her conditions of stay and was subsequently convicted and sentenced to prison for 3 months. Upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a torture claim later taken as a non-refoulement claim on the basis that if she returned to Thailand she would be harmed or killed by her creditor for failing to repay her loan. 

2.The Applicant was born and raised in Village Bandongvai, Haisok, Banphue, Udonthani, Thailand. After leaving school she married her husband and raised a family of a son and two daughters.

3.After her marriage ended in a divorce, she in 1995 moved to live in Thabor District, Nong Khai Province with her children, and started to work as a foreign domestic helper in Hong Kong for several years before returning to her home district in Thailand.

4.In July 2009 in order to pay for the school fee of her youngest daughter, the Applicant borrowed a loan from a local grocery store owner with her own house used as collateral and with interest charged on the loan payable per month.

5.After arranging for her elder daughter to be responsible for making the monthly interest payments to her creditor, the Applicant travelled to Hong Kong in October 2009 where she subsequently overstayed. 

6.One day in 2011 the Applicant was informed by her children that they had been late with the monthly interest payments, and as a result her creditor had threatened to kill her when she returned to Thailand, and later when her children were unable to repay the principle loan, her creditor repeated the same threats against her, and so after her arrest by police for overstaying in Hong Kong, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 23 June 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

8.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 creditor upon her return to Thailand as low due to the absence of any direct threats or ill-treatment from her creditor other than through her daughter, that it was a private monetary dispute between them without 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 67 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 part of Thailand away from her home district in large cities such as Bangkok where it would be difficult if not impossible for her creditor to locate her.

9.On 2 July 2014 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 before the Board on 17 March 2015 during which she gave oral evidence and answered questions raised of her claim by the Adjudicator for the Board. On 13 May 2015 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s claim of loan dispute with her creditor but found no evidence of any direct threats from her creditor whom she had had no direct contact since her departure from Thailand years ago, that there is no evidence of any real intention of the creditor to carry out her threats against the Applicant, 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 for her to safely move to other area away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

11.On 13 December 2016 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response form the Applicant, the Director by a Notice of Further Decision dated 3 March 2017 rejected her BOR 2 Claim upon finding that she had failed to establish any personal or real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon her return to Thailand.

12.The Applicant did not bring any appeal to the Board against that further decision of the Director, nor has she ever applied for judicial review to challenge those earlier decisions of the Director or the Board.

13.On 16 June 2020 she was arrested by police for using a forged identity card and undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 12 months.

14.Upon her discharge from prison on 14 February 2021, the Applicant was transferred to the Castle Peak Bay Immigration Centre (“CIC”) pending deportation when she wrote to the Immigration Department requesting to make a subsequent claim for non-refoulement protection on the basis that as she failed to repay her loan, her creditor turned to her former husband and his present wife for repayment of the loan, and after they had made payment on her behalf, they now demanded that she should repay them with threats that they would kill her when she returned to Thailand.

15.In support of her request to make the subsequent claim, the Applicant submitted further information to the Director, and attended an interview before an immigration officer on 26 April 2021 during which she provided further clarifications regarding her request to make a subsequent claim.

16.For the making of a subsequent claim, Section 37ZO of the Immigration Ordinance has set the following limitations:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

17.By a Notice of Decision dated 12 May 2021 the Director refused to allow the Applicant’s request to make a subsequent claim upon finding that her intended subsequent claim was based primarily on her previous claim of loan dispute with her creditor of which it had previously been found by both the Director and the Board to be a localized risk which had failed on all applicable grounds due to the availability of state/police protection and reasonable internal relocation to her upon her return to Thailand, and that based on the information and evidence submitted by her for her subsequent claim that it was not accepted that they constitute a significant change of circumstances which would give the subsequent claim a realistic prospect of success.       

18.As no appeal to the Board against such decision of the Director is allowed under Section 37ZR of the Ordinance, the Applicant on 18 June 2021 filed her Form 86 for leave to apply for judicial review of this decision of the Director, but no ground for seeking relief was given in her Form or in her supporting affirmation, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in his decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

19.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.

20.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their previous decisions that the risk of harm arising from her loan dispute is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Thailand that there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526, and given the fact that she has never challenged those findings by way of judicial review that those decisions have become final determinations of such claim of the Applicant, upon which the Director in the present application is entitled to take into account in deciding that the Applicant has failed to establish any significant change of circumstances since the previous claim had been finally determined or that such change when taken together with those material previously submitted in support of her previous claim would give her subsequent claim a realistic prospect of success.      

21.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on the Director to apply high standards of fairness in his consideration and assessment of the Applicant’s request to make a subsequent claim.

22.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 23^rd day of July 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

Form CALL-1