BOOTPROM PONGPISUT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 179/2022

[2026] HKCFI 1775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 179 of 2022

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;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.  The application herein for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 14 March 2022, the Applicant seeks 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 25 January 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 29 March 2021 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant attended the oral hearing scheduled before me but did not have anything specific to add in respect of the Leave Application.

Discussion

4.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[2] In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. As the matter stands, the Applicant has failed to identify any valid or effective public law grounds.[3]

5.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I have scrutinized the Board’s Decision for any errors of law, procedural unfairness or irrationality.

6.  I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success. [4]

7.  First, the primary decision makers are the Director of Immigration and the Board and the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director of the Immigration).[5]

8.  The Board was acutely aware of the Applicant’s claim that if he returns to Thailand, he will be harmed or killed by a man i.e. Sae, whom he owes money. The Board assessed the material facts and evidence of the Applicant’s claim including the COI materials. The Board was entitled to find that whilst the Applicant might have concerns for his safety in his normal place of residence, it would be reasonable and not unduly harsh for him to relocate to another area of Thailand to avoid such localized risk of harm. In particular, the Board rightly concluded that the risk of harm arises from an unpaid debt which is a private matter and there is no reliable evidence to suggest the police in Thailand would deliberately withhold protection. The Board also considered it is unlikely that Sae and/or his men intended to kill the Applicant.

9.  Second, it follows that the Board was quite simply entitled to come to the conclusions it did. There is nothing to indicate the Board had failed to take into account any relevant matters.

10.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

Conclusion

11.  I therefore accede to the Applicant’s request to withdraw her application for judicial review without adjudicating on the merits thereof. As I do not consider that there is anything outstanding, and the action should not be left at large, I further order that the leave application be dismissed.[6]

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