Phakdee Jatupat v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1534/2021

[2022] HKCFI 687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1534 of 2021

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being absent 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.The applicant applies for leave to apply for judicial review of the Decision dated 15 October 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant is now being detained by the Immigration Department.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her 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 national of Thailand.  She entered Hong Kong as a visitor on 11 March 2020, and by way of several extension of time applications, was permitted to stay until 23 September 2020.  She did not depart when her limitation of stay expired and had overstayed since 24 September 2020.  On 14 April 2021, she was arrested by the police.  On 12 May 2021, she lodged a non-refoulement claim.  The applicant is currently detained in the Castle Peak Bay Immigration Center. 

5.The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her boyfriend Veerayuth Hunngam (“VH”).  According to the applicant, she met VH in 2019 when she was working as a waitress in a resort.  The applicant claimed that VH’s abusive behavior started in February 2020 when he was fired from the resort.  She was attacked two or three times physically and got bruises.  On 6 March 2020, she was chased by VH with a knife after she refused to have sex with him.  The chaos led to VH’s arrest by the police.  Nevertheless, he was released a few days later and came to the resort to look for the applicant.  The applicant was fired by the resort and relocated to Bangkok before eventually fleeing to Hong Kong for protection.  Details of her claim were set out at paragraph 6 of the Notice of Decision dated 28 July 2021 (“the Director’s Decision”) and paragraphs 25 to 38 of the Board’s Decision as described below.  

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

c.  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

d.  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 way of the Director’s Decision, the Director refused the applicant’s claim.  The Director found that the level of risk of harm from VH upon the applicant’s refoulement was assessed to be low because (i) there was no evidence that VH intended to cause serious harms to her; that VH had the resources to locate her within Thailand and that her perceived risk of harm was substantial or imminent [12]-[14]; (ii) state protection would be available to her [15]-[22], and (iii) internal relocation was an option open to her [23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 30 September 2021, the applicant attended the scheduled oral hearing before the Board with the assistance of an interpreter [5]. 

9.The Board accepted the majority aspects of the applicant’s claim, such as her relationship with VH in 2019 and the fact that the applicant knew very little about him other than his profession as a driver in the same resort [42].  It also gave the applicant the benefit of doubt that VH had once contacted her through Facebook messages and threatened her while she was in Hong Kong [43].  In relation to the assaults from VH prior to her departure for Hong Kong, the Board accepted the possibility that there was a pattern of abusive conducts from VH which was escalated on 6 March 2020 [44]. 

10.Nevertheless, on the applicant’s own evidence, the Board found that VH was generally not a violent and dangerous man and that the assaults against the applicant were out of character due to the termination of his employment [45]- [47].  Further, considering the police’s decision to release VH and the applicant’s claimed unawareness of any further violent acts from VH, the Board found that any imminent or foreseeable risk of harm upon the applicant’s return was unlikely to occur [47].  In any event, the Board concluded that state protection and internal relocation to Bangkok were both available to the applicant [48]-[65].  Thus, the Board rejected the applicant’s claim and dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 4 November 2021 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant did not set out any specific ground in support of her application.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

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

“13. (1) … …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.”

16.There is no valid reason from the applicant to challenge the Board’s Decision.

17.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.

18.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 15^th day of March 2022

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