Case Document

100%Judiciary

HCAL 1566/2021

[2022] HKCFI 480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1566 of 2021

BETWEEN

	Sompoon Panatsaya	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 26-year-old national of Thailand who arrived in Hong Kong on 13 February 2020 as a visitor with permission to remain up to 14 March 2020 when she did not depart and instead overstayed, and was arrested by police more than one year later on 14 August 2021 for which she was subsequently convicted and sentenced to prison for 2 months. Upon her discharge form prison and being referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to Thailand she would be harmed or killed by her creditor over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Wang Thadee Sub-district, Nong Phai District, Phetchabun, Thailand. After leaving school she worked in clubs and restaurants, got married and raised a family with a son in her home district.

3.To help her parents with their debts, the Applicant in 2019 borrowed a loan from a local money lender with interest payable per month until full discharge of the loan, but when she was unable to do so in February 2020, the money lender sent his men to threaten her and took all her cash from her purse, and warned her that if she failed to repay her loan she would die.

4.The Applicant became fearful for her life and therefore on 13 February 2020 departed Thailand for Hong Kong where she subsequently overstayed, and after her arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 4 August 2021 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”).

6.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 or his men upon her return to Thailand as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to put pressure on her to repay her loan, that it was in any event 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 69 million people spread across a vast territory of more than 513,000 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 Chiang Mai where it would be difficult if not impossible for her creditor to locate her.

7.On 11 August 2021 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 15 October 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 29 October 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to her account of events occurred in Thailand prior to her departure that raised doubts in the credibility of her claim, but that in any event her problem with her creditor was a private monetary dispute between them without any official involvement that state/police protection would be available to her upon her return to Thailand as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.On 12 November 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for her intended challenge:

(1) that the Director and the Adjudicator reached their decisions wrongly in assessing her non-refoulement claim which decisions were unfair and unreasonable as required by the Wednesbury test that right to life must be protected by the criminal law from extra-judicial killings which she may face if deported to her home country;

(2) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in her case which led to an unfair outcome of rejecting her non-refoulement claim as she was tortured at the behest of the state law enforcement agencies and those high up in the political circles that the state would be rendered liable to her by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Adjudicator was procedurally improper and/or unfair when assessing whether to accept the explanation provided by her and unreasonably required her to response to questions that she was not in a position to offer any response;

(4) that the Adjudicator failed to take into account the nexus of political parties and official corruption which exists in her home country thus making persecution effectively persecution by the state;

(5) that the Director failed to take into account or to give enough weight to her argument that corruption and incompetency of the administration in her home country is still a very serious problem which various human rights organizations have compiled reports on the matter which stated testament to her assertions;

(6) that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law; and

(7) that the Adjudicator made a ruling to dismiss her application based on findings which the Adjudicator ought to have allowed the appeal and was thus irrational.

10.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy would the concept of state acquiescence or extra-judicial killings or torture or police corruption be to her claim which even on her own case at the highest a private monetary dispute between her and her creditor without any state or official or political element that none of them are reasonably arguable for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her 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 application either.

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 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 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 15^th day of February 2022.

(K.H. LI)
for Registrar, High Court

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 his solicitors must:
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)).		Sent to the Applicant on 15 February 2022 Sompoon Panatsaya Applicant’s ref. no.: Nil.		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 15 February 2022 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 18519/21/8/107/TH95 Director of Immigration Putative Interested Party’s ref. no.: ImmD/CR T/C 883/21 (formerly RBCZ 10920/21)(T3 I117) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)