Case Document

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HCAL 5/2024

[2024] HKCFI 1589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 5 OF 2024

BETWEEN
	Mahanaree Natthida	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 / 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 40-year-old national of Thailand who last arrived in Hong Kong on 25 August 2022 as a visitor with permission to remain as such up to 24 September 2022 when she did not depart and instead overstayed, and on 28 October 2022 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Thailand she would be harmed or killed by her former employer for having reported his gambling activities to the police. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in a village in Sub-District Rangkayai, District Phi Mai, Nakhon Ratchasima, Thailand. After leaving school she worked as a salesperson and then a waitress in various restaurants in Bangkok.

3.In 2020 she started her own restaurant in Bangkok, and in March 2022 she reported to the police of the illegal gambling activities of Chatchai, the owner of the restaurant in which she previously worked from 2017 to 2020, but that the police did not take any action against Chatchai as she suspected that they had been bribed by Chatchai.

4.Later on 25 August 2022 the Applicant came to Hong Kong as a visitor, during which she was informed by a staff of her restaurant that Chatchai had sent men to her restaurant looking for her in revenge, and as a result she became fearful for her life and was afraid to return to Thailand, and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 March 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 28 April 2023 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 her 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”).

6.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 risk of her being harmed or killed by Chatchai or his followers upon her return to Thailand due to the absence of any past ill-treatment from them, that there is no reliable evidence of any intention of them to seriously harm or kill her other than some hearsay, that in any event even if such risk were real that it arose from some private dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Thailand with a large population of 69 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 with working experience to move to other areas of the country away from her home district in large cities such as Phuket or Chiang Mai where it would be difficult if not impossible for anyone to locate her.

7.On 8 May 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 17 November 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former employer for reporting to the authorities of his gambling activities that caused her to overstay in Hong Kong to seek protection, and that even if her claim of her previous dispute with her former employer were true that there was no reliable evidence of any threats or intention of her former employer to harm or kill her over their private dispute that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

9.On 2 January 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

10.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.

11.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on the credibility of her bare assertions for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her 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.

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

13.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.

14.Moreover, the Applicant recently on 29 April 2024 filed an affirmation requesting to “cancel” her application as she wants to return to her home country but without any explanation as to what has happened to her claimed risk or problem that caused her to raise her non-refoulement claim.

15.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss her application.

Dated the 18^th day of June 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 18 June 2024 Mahanaree Natthida Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18 June 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 21718 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 209/23 (Formerly RBCZ 5000150/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)