Phatngern Namthip v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 2015/2024 [2026] HKCFI 4385 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2015 of 2024
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following:
Order by Deputy High Court Judge To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 5 November 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 17 October 2024 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 June 2024 (the “Notice”), refusing her non-refoulement application. 2.The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered that the application be justly determined on paper without an oral hearing. 3.The Applicant is a Thai national. Both the Board’s Decision and the Director’s Notice are in Chinese. However, her supporting affirmation is in English and her recent letter to the Court requesting for an update of her leave application is also in English. She is a university graduate in Thailand. Assuming that she is more conversant in English, this Form CALL-1 is written in English. Background 4.The Applicant last entered Hong Kong on 18 August 2022 as a tourist and overstayed since 18 September 2022. She was arrested for breach of condition of stay on 6 September 2023. On 19 March 2024, she made a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now applies for judicial review of that Decision. The Applicant’s case 5.The Applicant’s personal background, the factual background leading to the present application, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[5] for reference. In gist, she claims, if returned to Thailand, she will be harmed or killed by a moneylender, her husband or their associates for being unable to repay a loan of 100 million Thai Bahts. Her case as advanced in her non-refoulement claim form (“NCF”) is as follows. 6.The Applicant is now aged 27. She had received 16 years’ formal education and graduated from a university in Thailand. She operated an internet sales business in Hong Kong with her two good friends, Ms S and Mr A who were lovers. In June 2022, through Mr A’s arrangement, she and Ms S borrowed a loan of 100 million Thai Bahts from the moneylender at a weekly interest of 200,000 Thai Bahts for purchasing goods for their business. The moneylender is a renowned loan shark. Her husband is a senior army officer who is very powerful and has connections with the Thai police. 7.Upon receipt of the loan, the funds were transferred to Mr A for buying goods. Mr A undertook to arrange payment of interest to the moneylender. The Applicant has no knowledge about the payment of interest. However, in early July 2022, about two weeks after drawing down the loan, the moneylender informed her and Ms S that she had not received their interest payments. Ms S contacted Mr A. Mr A promised to deal with the matter. The goods allegedly ordered by Mr A never arrived and the outstanding interest was never paid. On 22 July 2022, the moneylender demanded the Applicant and Ms S to pay the outstanding interest and threatened to sell them as prostitutes to offset the loan, if they did not pay. On 24 July 2022, the moneylender went to the Applicant’s and Ms S’s home to demand payment. She repeated her threat to sell them. Out of fear, they fled to Phuket and then to Singapore. On 18 August 2022, they came to Hong Kong. 8.Initially, the Applicant and Ms S lived in a hotel. Subsequently, they lived with Mr A. They received calls from the moneylender who threatened to send someone to Hong Kong to “take them”. On 18 August 2022, a criminal court in Thailand issued a warrant for the Applicant’s arrest in connection with computer fraud. To avoid the harassment, the Applicant did not pick up the moneylender’s calls since October 2022. Round about that time, the Applicant’s father told her that the moneylender’s men had been to his home demanding him and the Applicant’s mother to tell the Applicant to return to Thailand, otherwise they would harm her parents. The Applicant’s mother had since left home. Thereafter, the moneylender’s men visited her father’s home five to six times. Later, Ms S gave birth to a child and Mr A broke up with her and disappeared. The moneylender last called the Applicant in January or February 2024. The finding of the Board 9.The Applicant testified before the Board. The Board found numerous inconsistencies and contradictions between her evidence in her NCF and her testimony. In her NCF, the Applicant said she entered into the business with her two good friends, Mr A and Ms S. But her testimony is that only Ms S was her friend, Mr A and Ms S were lovers, she did not even know Mr A and only saw him for the first time when she came to Hong Kong. She also said in her NCF that the purpose of the loan was to purchase goods for their business and when the issue of payment of interest arose she and Ms S questioned Mr A about delivery of the goods purchased. But in her testimony, she said the loan was acquired solely for Mr A and for his use in his own business. The lack of a genuine relationship between the Applicant and Mr A and the inconsistency in her evidence about the purpose and use of the loan call into question the credibility of the Applicant’s account and the existence of their partnership business which is founding base of her case. Given her education and experience, the Board found it incredible that she would have partnered with Mr A, a total stranger, despite his intimate relationship with her good friend Ms S, and allowed him uncontrolled use of a loan borrowed under her name and only for his business outside Thailand. The Board found her incredible and her account inherently improbable. It rejected her evidence. It found there is no factual basis to support her claim for protection. 10.However, the Board went on to assess her claim in the alternative on the basis of the case as she asserted. Despite the Applicant’s claim about the powerfulness of the moneylender and her husband, her evidence was that the moneylender only threatened her verbally and on the Facebook. The Applicant was able to resist the moneylender by refusing to see her when she came to her home and the moneylender left at the direction of the caretaker of the estate where she lived. She effectively stopped the moneylender’s harassment by simply ignoring her call. So did her family in Thailand. The Board found the moneylender had no intention to harm or kill her. It assessed her risk of harm to be very low. 11.The Board found the torture or mistreatment suffered by the Applicant was not inflicted by any state official acting in an official capacity or for the purposes of section 37U(1) of the Immigration Ordinance, that the mistreatment did not attain the minimum level of severity, and that the Applicant would not face a genuine and substantial risk of being subjected to such mistreatment on her return to Thailand. It also found her feared mistreatment did not arise on account of any of the reasons enumerated in 1954 Convention relating to the status of refugees and its 1967 Protocol. 12.The Applicant claimed that she would be at risk returning to Thailand because the moneylender’s husband is a senior army officer and that there is collusion between the army and the police. However, the Board found on the basis of authoritative and credible country of origin information, that the Thai government takes action against such and other illegal activities of the army and the police. It is satisfied that adequate state protection against such risk would be available to the Applicant on her return to Thailand. It also found internal relocation a viable option for the Applicant to avoid the risk of harm from her moneylender. She could relocate to Hat Yai in the southern part of Thailand or Chiang Mai to the north. Being a local Thai national and given her age, education and background, it would not be unduly harsh for her to relocate. 13.Applying the law applicable to non-refoulement protection to the Applicant’s case as she asserted, the Board found the Applicant had failed to establish his entitlement to protection under any of the four applicable grounds under the Unified Screening Mechanism (the “USM”). 14.For the above reasons, the Board dismissed the Applicant’s appeal against the Director’s Notice. Legal principles applicable to judicial review 15.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6]. Grounds for judicial review 16.The Applicant did not advance any ground of judicial review in her Form 86. In her supporting affirmation, she said she does not agree with the Board’s Decision but gave no particulars. In the absence of any specific grounds of application or application with sufficient particulars, the court in an application for leave to apply for judicial review could only examine the Decision for errors of law, procedural unfairness or irrationality in the Decision. Overall scrutiny 17.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board properly analyzed the evidence, tested it against common sense and inherent probability. It found the Applicant incredible and her account inherently improbable. It rejected her evidence. It gave full reasons for its findings. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. This is the primary basis of the Board’s Decision. The Board also undertook an assessment of the Applicant’s claim on the basis of the case as she asserted and some secondary finding of fact based on her case. Even on that basis, it found the Applicant is not entitled to protection under any of the applicable grounds. This is the secondary basis of the Board’s Decision. 18.The Board’s finding under both basis are mixed finding of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Conclusion 19.For the above reasons, the leave application is refused. Dated the 4th day of August 2026
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 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002015_2024_files/the_Board's_Decision.pdf [6] [2018] HKCA 524 at [14(1)] | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment