Chantharasiri Singha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 717/2019

[2023] HKCFI 87

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 717 of 2019

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:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 February 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 14 March 2019 is late.[1] I shall deal with this issue below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is therefore dealt with 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 last entered Hong Kong as a visitor on 17 May 2012 and was permitted to remain until 16 June 2012. His limitation of stay was later extended to 23 June 2012. However, he did not depart and had overstayed since 24 June 2012. On 28 June 2012, he was arrested by the police for overstaying and for trafficking in dangerous drugs, for which, he was convicted and sentenced to 4 months’ imprisonment. On 11 October 2012, he raised a torture claim, which was later taken as a non-refoulement claim upon the commencement of unified screening mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by an unknown killer and the followers because he witnessed their criminal act of murdering a person.

5.In short, in an early morning on 13 or 14 May 2012, the applicant witnessed a man killing a motorcyclist in a parking lot. He did not know those involved in the incident but the victim was a regular customer in his restaurant. The killer saw the applicant and threatened to kill him if he reported to the police. The applicant called the ambulance for the victim and left for home. Thereafter, the police told the applicant that the victim was dead and asked him to be the witness for the case. While the police offered witness protection, the applicant feared that the protection would not be sufficient. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraphs 6-21 of the Notice of Decision dated 8 September 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.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”).

7.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk for the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the absence of physical harm from the killer indicated an unlikelihood of future risk of harm [30]; (ii) his delay in seeking international protection promptly was inconsistent with someone who genuinely feared an immediate risk of harm [31]; (iii) state protection would be available to him [32]-[36]; and (iv) internal relocation was a viable alternative [37].

8.For reasons set out in the Notice of Further Decision dated 19 January 2017 that he was unable to establish that his right to life would be violated if he returned to Thailand, the Director also rejected the applicant’s claim on the ground of BOR2 risk (the “Director’s Second Decision”).

The Board’s Decision

9.On 20 September 2016, the Secretariat of the Board received a notice of appeal/petition dated 13 September 2016 from the applicant to appeal the Director’s First Decision. He was around one year late.

10.The Board considered the applicant’s explanation. In a letter dated 18 August 2016 to the Board, he stated that the Director’s First Decision was sent to his residential address while he was detained in the Castle Peak Bay Immigration Center (“CIC”). The Board rejected this explanation as it was inconsistent with his reasons in the notice of appeal/petition which he said that the delay was due to his lack of legal and language assistances [14]. Nevertheless, the Board, after considering all the circumstances, also rejected this explanation [15]-[24]. In this premise, the Board concluded that there was no special circumstance which would warrant its exercise of discretion to allow the late filing.

11.As a result, the Board rejected the applicant’s late filing of notice of appeal/petition against the Director’s First Decision.

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

12.The applicant has filed Form 86 dated 14 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said that he still has problems in his country.

DISCUSSION

14.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 3 May 2017. The delay is more than 1 year and 10 months, which is, no doubt, serious.

15.He has given no explanation for his delay and there being no other extenuating factor for my consideration, his application should be dismissed on this basis alone.

CONCLUSION

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

Dated the 13^th day of January 2023

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