Pakpongsiri Thidarut v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2579/2019

[2025] HKCFI 1050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2579 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 22 March 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 22 June 2019. Her application was filed on 4 September 2019. The delay is more than 2 months. This issue will be dealt with below.

2.The applicant requested an oral hearing. She appeared before the Court on 3 March 2025.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 41, is a national of Thailand. She came to Hong Kong on 8 April 2014 as a visitor. She overstayed since 5 June 2018 and was arrested by police on 26 September 2017. She was referred to the Immigration Department. She lodged a non-refoulement dated 25 October 2017 on the basis that, if refouled, she will be harmed by her step-father and the loan shark because she was unable to repay her step-father’s loan.

5.According to the applicant, her stepfather started abusing her since 2002 after her mother left him. He vented his anger by slapping and punching her, hitting her with broken glass, chair or wooden plank, or burning her with lighted cigarette butts. He borrowed money from the loan shark. The loan shark and his people came to her house. They demanded payment of the loan from her step-father and her. They assaulted him and her in the house by squeezing her neck and banging her head against the wall. She left her step-father and came to Hong Kong in 2004.

The Director’s Decision

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 Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of ill-treatment is indicative of a low future risk of harm upon her return to Thailand; that state protection will be available; and that internal relocation is viable. [12]-[19]

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 December 2018, the Board conducted an oral hearing.

9.Having considered the applicant’s evidence, the Board had taken on board its proper approach in the assessment of the evidence. [47]-[54] It found that there is no foreseeable, real, personal and present risk that she will be harmed by her step-father or the loan shark if she returns to Thailand. [58] The Board further found that she will be protected by the state and internal relocation is viable, too. [66] & [75]

10.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

11.The applicant has filed Form 86 dated 4 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, she said that the Board disregarded her dangerous situation. She did not explain why she had delayed her application.

DISCUSSION

13.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. I shall consider the merits of the applicant’s case.

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board might have made a correction decision.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

18.The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

19.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 her application.

The applicant appeared in person.