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HCAL 437/2022
[2026] HKCFI 3023
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 437 OF 2022
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BETWEEN
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Stanners Nanthana |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 6 June 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 12 April 2022 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000437_2022_files/the_Board's_Decision.pdf
2. The Board found that the applicant was unable to establish a real likelihood of risk pertinent to any of the applicable grounds under the Unified Screening Mechanism (“the USM”) for a non-refoulement claim. Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 22 April 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named “Andrew Ma Member of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office” as the putative respondent and “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative interested party in Form 86.
4. In fact, Mr Ma was only making the Board’s Decision in his capacity as a member of the Board. Thus, the Board should be named as the putative respondent. Also, the Director, instead of the Board / Non-refoulement Claims Petition Office should be named as the putative interested party.
5. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.
6. This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
7. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
8. In sum, the applicant claimed for non-refoulement protection because if refouled to Thailand, she would be ill-treated or even killed by her creditor named Kung and Kung’s subordinates due to her inability to repay her loan.
Disposal on paper
9. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
10. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
11. The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 6 June 2022. In her affirmation, the applicant merely stated that she did not agree with the Board’s Decision, she could not go back to her own country because she had borrowed money from the big agency long time ago, she had big problems with them and they were very influential and powerful people, she was worried that if they found her, they would hurt her, and she was scared.
Discussion
12. First of all, what the applicant mentioned in her affirmation was merely a reiteration of the basis of her non-refoulement claim, which had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
13. 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 [2018] HKCA 524).
14. Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
15. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 5 August 2021. The applicant was present and was thus given the chance to present her case to the Board in person.
16. As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.
17. The Board had laid out its findings on the credibility of the applicant in paragraphs 38 to 52 of the Board’s Decision, and it is not necessary for this court to repeat the same here.
18. In gist, the Board found that the applicant had produced no evidence to support her claims, and there were glaring discrepancies between the information she provided to the Director and her testimony at the Board’s hearing regarding the details of her case. Even bearing in mind the relatively low standard of proof on the part of the applicant, the Board still had great reservations on her credibility.
19. The Board went on to assess the applicant’s case against all the applicable grounds under the USM, but found that even if the descriptions of the applicant were accepted, the applicant still failed to establish a case for non-refoulement protection.
20. The Board found that the applicant’s dispute with the creditor arose only from her inability to repay a loan, which was a private matter without any involvement of the state. There was no indication of state acquiescence. The applicant’s fear of the creditor was not for a Convention reason. The injuries that the applicant and her parents suffered were not serious. The creditor had no real intention to seriously harm the applicant and her parents as they could have done so, but they did not. In any event, Kung had secured the land deed from the applicant’s mother and the value of the property, according to the applicant, was higher than the loan amount.
21. Further, the Board found from extensive, fully-referenced country of origin information (“COI”) that the state of Thailand could offer effective protection to the applicant upon her return. Moreover, internal relocation was viable for the applicant. The applicant had in fact stayed in Bangkok before her departure from the country and nothing eventful happened to her. The Board was of the view that it would be unrealistic to speculate that the local creditor would have the ability and resources to conduct a nationwide search for the applicant after her relocation.
22. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
23. The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
24. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
25. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 27th day of May 2026
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( Gladys LEE )
for Registrar, High Court
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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 his solicitors must:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 27/05/2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 27/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 17938/21/5/51/TH78
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 266/21
(formerly RBCZ 10250/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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