Kompipak Wudtikai v. Torture Claims Appeal Board

HCAL 1188/2023

[2023] HKCFI 3244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1188 OF 2023

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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 3 June 2021 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Thailand who in November 2016 raised a non-refoulement claim to the Immigration Department on the basis that if refouled to Thailand he would be harmed or killed by his creditor over his unpaid debts, but before submitting the prerequisite Non-Refoulement Claim Form (“NCF”) to substantiate his claim, the Applicant on 24 October 2018 through his lawyer from Duty Lawyer Service (“DLS”) wrote to withdraw his non-refoulement claim, and by a letter dated 26 November 2018 the Director of Immigration (“Director”) accepted the Applicant’s withdrawal and confirmed that no further action would be taken of his non-refoulement claim.

2.Some 3 months later on 28 February 2019 the Applicant wrote to the Director to request to re-open his non-refoulement claim which he earlier withdrew allegedly due to his impulsive act after an argument with his wife, and that he still feared of being harmed by his creditor in Thailand over his unpaid debts if refouled to his home country.

3.On 5 March 2019 the Director in pursuance of Section 37ZE (2) of the Immigration Ordinance, Cap 115 required the Applicant to provide sufficient evidence in writing to satisfy an immigration officer that since the withdrawal there had been a change of circumstances that could not reasonably have been foreseen by the Applicant when he withdrew his claim, and that when taken together with the material previously submitted for his claim could increase the prospect of success of his claim, or that by reason of special circumstances it would be unjust not to re-open his claim.

4.On 12 April 2019 the Applicant attended at the Immigration Department and submitted a statement in support of his request to re-open his claim as required in that he married a Hong Kong resident after the withdrawal of his claim, that he has to take care of his aging mother who is also a Hong Kong resident, and that in addition to his fear of being harmed by his creditor over his unpaid debts, he also fears of being harmed or killed by the political group The Yellow Shirts as he used to be a member of their rival The Red Shirts prior to his departure of Thailand in 2014.                      

5.By a Notice of Decision dated 30 April 2019 the Director refused to allow the Applicant to re-open his non-refoulement claim upon finding that at all material times of his request to withdraw his claim that he was legally represented by DLS and would have received proper legal advice for his withdrawal, that his claimed fears of harm from both his creditor and the Yellow Shirts had existed long before his request of withdrawal of his claim that his reasons for re-opening of his claim were not accepted as valid, and that it was not satisfied that there had been a change of circumstances that the Applicant could not reasonably have foreseen when he withdrew his claim, or that there were any special circumstances that would make it unjust not to re-open his claim.

6.On 11 September 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and notwithstanding the fact that his notice of appeal was filed long after the 14-day period from the date of the Director’s decision as required by Section 37ZS (1) of the Immigration Ordinance, the Applicant attended an oral hearing on 31 July 2020 for his appeal before the Board during which he gave evidence and answered questions raised of his appeal and his proposed non-refoulement claim by the Adjudicator for the Board. On 3 June 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board accepted the Applicant’s claim of having married a Hong Kong resident on 18 January 2019 as a change of his circumstances in his marriage status after the withdrawal of his claim which could not reasonably have been foreseen by him when he gave his withdrawal notification, but found when taken together with the material previously submitted by him for his claim that such change cannot in any way increase the prospect of success of his claim, that on the basis of the evidence before the Board that such claim of his would still fail in the absence of any reliable or documentary evidence of his alleged debts or involvement in The Red Shirts or of any threats from The Yellow Shirts other than his own bare and vague assertions, that even if such risks were real that the one which arose from his creditor was a private monetary dispute between the 2 of them without any state or official involvement that state or police protection would be available to the Applicant upon his return to Thailand, while his alleged involvements in The Red Shirts were merely at grass-roots level that it is not acceptable that The Yellow Shirts would have any reason to politically target him for harm or to still have any adverse interest in him after all these years since he left the country, and that in any event according to reliable and relevant COI that The Yellow Shirts Group has been dissolved in Thailand and is no longer a powerful or influential group, while reasonable internal relocation alternatives are also available within the country with a large population of more than 68 million people spread across a vast territory of more than 510,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move safely to other areas of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all the applicable grounds.    

8.On 14 July 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) That the Adjudicator reached the decision wrongly in assessing the Applicant’s non-refoulement claim in that the decision was not reasonable or fair as required by the Wednesbury test in failing to recognize that the Applicant’s right to life must be protected by criminal law from extra-judicial killing that he may face if deported back to his home country;

(2) That the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)That The Board failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting the Applicant’s non-refoulement claim;

(4) That the Board failed to take into account the Applicant’s argument that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in his country would not be able to protect but failed to consider or to give enough weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the board which in itself is enough to render the decision void; and

(6) That the Board failed to attain high standard of fairness in failing to consider the Applicant’s argument that corruption and incompetency of the administration in his country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law.  

9.By then the Applicant was however seriously out of time 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 date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

10.As the last day of the 3 month-period for him to file his Form 86 fell on 3 September 2021, the Applicant was therefore more than 1 year 10 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 more than 1 year 10 months must be considered as very substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and at the hearing of his application he just repeated his claim as before and that he had been detained by the Immigration Department without access to legal assistance but without any further details of such detention, and as the record shows that the decision was sent on the same day of 3 June 2021 to his then reported address before his detention and without being returned through undelivered post, and notwithstanding the inevitable delays to incoming and outgoing mails or inconvenience in accessing legal assistance while in detention, I am not satisfied that they can amount to good or valid justifications for the Applicant’s serious delay.    

12.As for the merits, if any, of his intended application, those grounds put forward by the Applicant as noted above are however all just some bare and vague assertions of his containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to give the Applicant sufficient time and opportunity to submit his evidence in support of his case or fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were State Acquiescence or extra-judicial killings to his case or what evidence is there of him having ever been tortured by the state law enforcement agencies or politicians even on the factual bases of his own case. As such and as none of these assertions were elaborated or presented with the relevant particulars or specifics or elaborations by the Applicant, I do not find any of them reasonably arguable for his intended challenge, 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, nor do I 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 appeal or claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 correctly found by the Board in the decision that had the Applicant been allowed to re-open his non-refoulement claim, the risks of harm in his claim would have been localized ones and that it would not be unreasonable or unsafe for him to relocate to other part of Thailand, there would still have been no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

16.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 respective parts to apply high standards of fairness in their consideration and assessment of the Applicant’s request to re-open his claim or his appeal/petition.

17.For these reasons I am 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, I refuse to extend time and accordingly dismiss his leave application.

Dated the 14^th day of December 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