Case Document

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HCAL 871/2023

[2024] HKCFI 2125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 871 OF 2023

BETWEEN
	Rud-oo Chanita	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 41-year-old national of Thailand who arrived in Hong Kong on 14 July 2019 as a visitor with permission to remain as such up to 13 August 2019 when she did not depart and instead overstayed, and almost 3 years later on 16 June 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 boyfriend for leaving him and ended their relationship. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Udon Thani City, Thailand. After leaving school she worked in the factory, got married and raised a family with a daughter in her home district.

3.In 2008 she divorced her husband, and subsequently in 2011 met and cohabited with her former boyfriend and with whom she also gave birth to a daughter.

4.However, soon the Applicant discovered that her boyfriend was a drug addict and was also involved in dealing drugs, and whenever she tried to plead with him to stop his illegal activities, he would become furious and beat her severely.

5.By 2018 the Applicant found herself no longer able to tolerate living with her boyfriend, but when she told him of her wish to leave him and to end their relationship, her boyfriend became furious and beat her severely, and threatened to kill her if she dared to leave him.

6.Eventually with help from her friend the Applicant was able to make arrangements to leave the country, and so on 13 July 2019 she left her boyfriend by fleeing to Bangkok, and on 14 July 2019 she departed Thailand for Hong Kong where she overstayed and subsequently raised her non-refoulement claim to the Immigration Department for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 November 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 15 December 2022 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her former boyfriend upon her return to Thailand as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her, that in any event it was a private domestic dispute between the 2 of them only 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 Chiang Mai or Phuket where it would be difficult if not impossible for her former boyfriend to locate her.

9.On 23 December 2022 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 25 April 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 May 2023, her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.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 boyfriend that caused her to leave her country to come to Hong Kong for protection, that her credibility was further undermined by her failure to raise her claim upon her arrival in Hong Kong until almost 3 years later, that in any event even if her claim of disputes with her former boyfriend were true that there was no reliable evidence of any real intention of her former boyfriend to seriously harm or kill her, and that it was a private relationship dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Thailand as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.

11.On 5 June 2023 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 her supporting affirmation of the same date to which she just attached a copy of the decision without putting forward any proper ground for her intended challenge. 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.

12.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.

13.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.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.

15.Moreover, the Applicant recently on 25 June 2024 filed an affirmation requesting to withdraw her application but without providing any explanation or reasons for her request.

16.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 20^th day of August 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 20 August 2024 Rud-oo Chanita 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 20 August 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 21309 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1130/22 (Formerly RBCZ 5000995/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)