THAWIAPHIRADISAENGSIRI NARIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2738/2019

[2025] HKCFI 5924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2738 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

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 18 September 2019 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 26 July 2019 (the “leave application”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 December 2018 (the “Notice”), refusing his application for non-refoulement protection.

2.  The Applicant had requested an oral hearing. His address as stated in his Form 86 is the address of an immigration facility where he was then detained. He was subsequently discharged, but he did not update his address with the Court. An oral hearing on 10 November 2025 was scheduled for him. A notice of hearing was sent to him by post on 10 October 2025 to his last reported address as discovered from the Immigration Department on 27 March 2025. It has not been returned through the post. There is nothing to suggest that he had not received the notice or had moved. On the afternoon of 7 November 2025 and again on the morning of 10 November 2025, a court staff attempted to contact him by telephone to remind him of the hearing, but the calls were not answered. He did not appear at the hearing. The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice.

3.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing. Hence, the Court proceeded with the determination.

Background

4.  The Applicant is a Thai national. His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, he claims that if returned to Thailand, he will be killed by his friend or the operator of an illegal gambling establishment because of a monetary dispute.

5.  The Applicant arrived Hong Kong from Thailand on 8 December 2015. He took a day trip to the mainland on 5 January 2016 and returned to Hong Kong on the same day. He overstayed since 5 February 2016. He was arrested by the police on 26 April 2018 for breach of condition of stay and sentenced to eight weeks’ of imprisonment. Then he made a non-refoulement claim by written representation on 22 June 2018.

6.  In his non-refoulement claim form (the “NCF”) he claimed that he was introduced by his friend, who was a gunman of an illegal gambling establishment in Chiang Mai, to work as a debt collector for the illegal gambling establishment in June 2015. He worked for three months but was not paid his commission. He asked his friend and was told that his friend had not received his commission from the employer. He went to ask the staff of the gambling establishment and was told that the money had been given to his friend. He waited until November 2015 and asked his friend again. This time, his friend told him that he was not going to receive any payment and threatened to kill him. He made a report to a local police station about the illegal gambling establishment and his friend’s threat, but the police took no action. He believed that was because the police had been bribed by the operator. He moved from place to place since the beginning of November 2015 until he came to Hong Kong. In the meantime, his friend flashed his gun and threatened his mother.

7.  When he testified before the Board, he gave a different account. He said he was threatened three to four times by the operator of the illegal gambling establishment that he will be killed if he disclosed the matter, presumably meaning the illegal gambling establishment. Then, he said he was threatened by his friend, the operator and his associates.

8.  Putting the different versions of events aside, the Board found his evidence is not reliable. First, he had not been threatened until mid November 2015, there was no reason for him to move around since the beginning of November 2015. Second, nothing happened to him when he stayed in Bangkok and Pattaya or in Chiang Mai before he came to Hong Kong. He had never been harmed. Third, he did not seek protection until more than two years after his arrival in Hong Kong. The Board rejected his explanation that he did not know about the availability of non-refoulement protection in Hong Kong. It considered such conduct inconsistent with a person in genuine need for protection.

9.  Nevertheless, the Board went on to consider his claim on the basis of the factual case as he asserted. It found on the basis of authoritative and credible country of origin information that despite corrupt practice and inefficiency in the police, the Thai government would investigate complaints of people’s grievances and provide justice to people who have been treated unfairly by all types of civil servants or state employees. Even accepting that the local police station did not take action against his friend or the operator, the Board considered the corrupt practice in that police station did not represent the police in Thailand as a whole. It found state protection would be available to the Applicant on his return to Thailand.

10.  It found no severe pain or suffering within the definition of “torture” under section 37U(1) of the Immigration Ordinance or ill-treatment attaining the minimum level of severity had ever been inflicted on the Applicant by his friend, the operator or his associates; that they were not public officials; and that they had never injured him. It found there is no real risk of torture under Torture Risk ground upon the Applicant’s return to Thailand. For the same reason, it considered it unlikely that he would face a genuine and substantial risk of being subjected to ill-treatment under BOR 3 risk ground.

11.  It found the Applicant’s feared ill-treatment from his friend, the operator or his associates would not be on account of a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

12.  It also found the Applicant has failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2 being violated upon his return to Thailand.

13.  Applying the law applicable to the non-refoulement protection under the Unified Screening Mechanism (the “USM”) to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the decision in the Notice.

Grounds for judicial review

14.  The Applicant has not advanced any grounds of application in his Form 86. In his supporting affirmation, he advanced three challenges against the decision of the Immigration Department, namely:

(1)  “information provided was based and irrelevant”;

(2)  “failed to determined [his] threat upon [his] return to … Thailand”; and

(3)  “judgment based on information provided was neglected.”

The decision of the Immigration Department had been superseded by the Decision of the Board and is not reviewable. For the benefit of the Applicant, the Court assumes that these challenges are directed at the Board’s Decision. These are general allegations without particulars. It is impossible to assess the validity of these grounds. The Applicant has forfeited the opportunity to attend the hearing to perfect his grounds. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision.

Overall scrutiny

15.  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 analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information. The Board had doubts about the credibility of the Applicant’s case. Nevertheless, it assessed his claim on the basis of the factual case as he asserted and the further finding of fact as summarized in paragraphs 8 to 13 above. Applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. These are mixed findings 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 his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

16.  For the above reasons, the Applicant’s leave application is refused.

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

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