Ma-yoe Phonchai v. Torture Claims Appeal Board

HCAL 2090/2024

[2025] HKCFI 1312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2090 OF 2024

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 31-year-old national of Thailand who last arrived in Hong Kong on 24 July 2019 as a visitor with permission to remain as such up to 23 August 2019 when he did not depart and instead overstayed, and some 8 months later on 25 April 2022 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Thailand he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village 11, Mae Salong Nai Sub-district, Mae Faluang District, Chiangrai, Thailand. After leaving school he worked as a farmer and also in the factory in his home village to make his living.

3.In January 2018 he started his own business selling durians with the help of a loan borrowed from a local money-lender with monthly interests payments until discharge of the loan, which the Applicant managed to do initially from his business income.

4.However, he lost his business in September 2018, and when he was unable to repay his loan, he fled from his home village to other cities such as Chiang Mai and Bangkok to hide from his creditor, and when he was later informed by his family that his creditor and followers had come looking for him in his home village with threats to kill him, the Applicant became fearful for his life and on 24 July 2019 he departed Thailand for Hong Kong where he subsequently overstayed, and some 8 months later he surrendered to the Immigration department to raise his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 September 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 3 November 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 his 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 assessed the level of risk of harm from his creditor and followers upon his return to Thailand as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his loan, that in any event it was a private monetary dispute between him and his creditor 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 51,000 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 his home district in large cities such as Bangkok or Phuket where it would be difficult if not impossible for his creditor to locate him.

7.On 16 November 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 19 September 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 October 2023, his 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 his claim of fear of harm from his creditor that caused his to leave his country to come to Hong Kong to seek protection, that the credibility of his claim was further undermined by his failure to raise it upon first arriving in Hong Kong until some 8 months later after overstaying in Hong Kong, and that there was no reliable evidence of any ill-treatment or harm being inflicted on him or any other documentary evidence of his claimed failed business or loan agreement with his creditor to corroborate his account which are all just bare assertions that the Board concluded that the Applicant had failed to establish any real risk of harm from anyone upon his return to Thailand, and that in any event even if his account were true that there are reasonable internal relocation options available for him to move safely away from his home district to other places without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.

9.On 11 November 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge.

10.By then the Applicant was also 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.As the last day of the three-month period for him to file his Form 86 fell on 27 January 2024, the Applicant was therefore more than 9 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.

12.In the Applicant’s case, a delay of more than 9 months must be considered as very substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 27 October 2023 to his then reported address without being returned through undelivered post, I am unable to see any good reason or justification for his serious delay.

13.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, 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, I do not find any merits in his intended application either.

14.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.

15.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 his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Thailand, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.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.

17.Moreover, the Applicant recently on 21 January 2025 filed an affirmation requesting to “cancel” his application but without providing any reasons or explanation for his request.

18.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 therefore refuse to grant leave and accordingly dismiss his leave application.

Dated the 10^th day of April 2025

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