Supoldee Sombat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 776/2022

[2022] HKCFI 2972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 776 of 2022

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 20 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

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 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 national of Thailand. He entered Hong Kong as a visitor on 12 September 2013. He overstayed and was arrested by police on 19 April 2014. He lodged a non-refoulement claim by written representation dated 17 June 2014. His claim was made on the basis that, if refouled, he would be harmed or killed by his unnamed loan shark from whom he had borrowed money and a person named Guy, whom he claimed to be the leader of the Red Shirt Mob.

5.According to the applicant, in mid of 2011, he borrowed 300,000 to 500,000 baht from the loan shark, whose name he did not know for his business called “Stronger Boy Bar and Massage” in Pattaya. He was unable to repay because a political upheaval in Thailand where the yellow shirts closed the airport, which affected his business because the customers were most the foreigners. The loan shark demanded repayment of the loan and he was assaulted by the loan shark’s men. He was hit in the face. The staff called for help and the four men left as some neighbours arrived. He did not report to police as his neighbours told him that the loan shark was connected to police. The applicant closed his shop in September 2011. From 2011 to 2013, he travelled from Thailand to Hong Kong and China without any problem. The applicant said that the loan sharked had threatened that he would be killed if located. He further told the immigration officer that his niece was killed in her room. The cause of her death was unknown. He suspected the loan shark had done it.

6.As to the red shirts, the applicant told the Director that since late 2012 or early 2013, he was a supporter of the red shirts, a political pressure group in Thailand. He said he was responsible for collecting money from the leading members of the red shirts and passing it to a man named Kee. Kee would then distribute the money to supporters in Sanamluang in Bangkok. He said he had passed 300,000 baht to Kee, who fled with the money. Guy, who was the leader of the red shirts, demanded him to pay the money. He feared that Guy and the red shirts people would kill him. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 28 November 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

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

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low or unlikely to materialize. In elaboration, the Director found that (i) there was no evidence showing that the loan shark or the red shirts would materialize the death threats [16]-[24]; (ii) the applicant’s own behaviors contradicted with those of someone who feared a risk of harm [25]; (iii) there was insufficient ground to suggest that the loan shark and the red shirts had wide network and power to locate him [26]; (iv) there was insufficient evidence to suggest that he would be subject to real and future risk of being harmed or kill by the loan shark or the red shirgs [29]-[31]; (v) state protection would be available to him [32]-[42]; and (vi) internal relocation was a viable alternative [44]-[52].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 22 August 2018, the Board conducted an oral hearing for his appeal.

10.The Board heard his evidence and confirmed the Direction’s Decision. The Board further found that the applicant had given implausible and inconsistent evidence relating to the facts before the Director and the Board. He gave evidence to the Director that his business was interrupted by the political events in 2011, which caused him to close his business. The adjudicator made a search and found that the political event took place in November 2008, not in 2011. The Board asked him to provide explanation for this discrepancy. He did not provide the explanation.

11.The applicant told the Director that he collected money from the red shirt supporters and passed it to Kee, who fled with money. As a result, Guy demanded him to account for the money. Before the Board, he said that the money was given to him by Kee for passing to Guy and it was Guy who had fled with the money. When he was confronted with the different versions, he said that what he had told the immigration officer was wrong. The correct version should be the one he told the Board. In fact, he admitted he did not know anything about the red shirts. It is therefore doubtful why he should assist the red shirts.

12.For the above reasons, the Board considered that the applicant might not be harmed or killed by the loan shark in the future as he was safe when he frequently travelled between Hong Kong and Thailand on numerous occasions between 2011 and 2013. The Board did not accept that his niece was killed by the loan shark. Also, given the amount of time that had elapsed since the claimed event and the changes in the political landscape in Thailand, it did not consider that the applicant was at risk of harm from the red shirts in any event.

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

13.The applicant has filed Form 86 dated 16 August 2022 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant said he was not satisfied with the Board’s Decision.

DISCUSSION

15.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17.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.”

18.There is no valid ground from the applicant to challenge the Board’s Decision.

19.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.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

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

Dated the 27^th day of September 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