Bunsri Kaiwit Alias Bunsri Anuchit Alias Bunsri Chaiwat v. Torture Claims Appeal Board

HCAL 1553/2020

[2022] HKCFI 2319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 1553 of 2020

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Thailand who had previously overstayed in Hong Kong under a different name and was later deported, and on 11 July 2014 he again arrived in Hong Kong as a visitor under another identity with permission to remain up to 12 July 2014 when he did not depart and instead overstayed, and was arrested by police on 18 February 2016 for possession of an offensive weapon in public and was subsequently convicted and sentenced to prison for 8 months. After his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Thailand he would be harmed or killed by members of the political movement known as the Yellow Shirts against the then government of Prime Minister Thaksin Shinawatra as he supported their rival group the Red Shirts and/or by the Thai authorities for being a Red Shirts supporter. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Yasothorn, Thailand. After leaving school he worked in the factory and later ran his own clothing business, and in 2014 started to support the Red Shirts in their protests against the then Prime Minister during which he and his fellow Red Shirts supporters frequently came into conflicts with the Yellow Shirts supporters and had on occasions been assaulted by them, and later when the Thai police and authorities started to crack down on the protests and arrested the leaders of both groups, the Applicant in May 2014 he departed Thailand for Hong Kong under a different name and overstayed but was subsequently arrested and repatriated to Thailand.    

3.On 11 July 2014 he again arrived in Hong Kong and overstayed, for which he was arrested on 18 February 2016 for the offence of overstaying and possession of weapon for which he was convicted and sentenced to prison, and upon his discharge and was referred to the Immigration Department for deportation, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 28 November 2018 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 his 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by the Yellow Shirts or the Thai police or authorities upon his return to Thailand due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for the Yellow Shirts or the authorities to target him or to have any adverse interest in him given that he was just an ordinary Red Shirts supporter without any official position in the group, that there is no reliable evidence of him being pursued by the police or authorities given that he was able to leave and return to the country without any problem, that state or police protection would be available to the Applicant if resorted to upon his return to Thailand, and that reliable and objective Country of Origin Information (“COI”) show that as a Thai citizen he would be entitled to due process and fair trials under the legal and judicial system in Thailand if indeed he is being pursued by the authorities for lawful investigation , and that reasonable internal relocation alternative is available in Thailand with a large population of 68 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 the country away from his home district in large cities such as Chiang Rai or Chiang Mai where it would be difficult if not impossible for any Yellow Shirts to locate him.

6.On 11 December 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 23 July 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 October 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s claim of being an ordinary supporter of the Red Shirts and had been involved in their conflicts with the Yellow Shirts and/or then government but found no evidence or reason for the Red Shirts or the authorities to specifically target him or to have any adverse interest in him given that he was just an ordinary supporter and not a leader of the Red Shirts on the basis of the relevant COI and the fact that he was able to obtain his passport and to leave his country and return without any problem that it concluded that his claim for non-refoulement protection failed on all applicable grounds.     

8.On 23 July 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just repeated his claim as before of fear of being harmed or killed if refouled to his home country but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

9.By then he was also seriously late with his application, as 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 day when grounds for the application first arose unless the court considers extending the period within which the application shall be made.

10.As the last day of the three-month period for him to file his Form 86 fell on 25 January 2020, the Applicant was therefore some 6 months late with his application, and in considering whether to extend time, the court shall 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: AW v Director of Immigration [2016] 2 HKC 393.

11.In the Applicant’s case, a delay of 6 months must be considered as very substantial and inordinate, for which he did not provide any explanation in his Form or affirmation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, I do not see any good or valid reason for his such serious delay.

12.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forward any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

13.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.

14.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in paragraphs 50 – 68 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim from the Yellow Shirts is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Thailand, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

16.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.

17.Furthermore, the Applicant recently on 14 June 2022 filed an affirmation requesting to withdraw his application as he wants to return to his home country.

18.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay and in view of his latest confirmation of his wish to return to his home country, I accordingly dismiss his leave application.

Dated the 29^th day of July 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