TAMMAWONG PAKAMON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3712/2019

[2025] HKCFI 1059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3712 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 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 for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 12 December 2019, the Applicant applies 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 29 November 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 18 June 2019 (“the Director’s Decision”), which rejected her non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.  In Form 86, the Applicant has incorrectly named herself a proposed respondent and the proposed interested party.  I have amended Form 86 on my own motion, naming only the Board as the proposed respondent and adding the Director as the proposed interested party.

Background

3.  The material facts of this case, including the Applicant’s personal background, the incidents alleged by her to show that she would be harmed or killed by an illegal gambling-joint in Thailand, and the immigration and procedural history, etc. have been set out comprehensively in the Board’s Decision.  It is not necessary to repeat them all over again.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1].  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions herein.

Discussion

4.  After going through all the evidence adduced by the Applicant and applying the relevant law and legal principles relating to the issues and the Grounds, the Board concluded that the Applicant had failed to make out her case for claim of non-refoulement protection.  The Board’s discussion of Torture Risk, BOR 2 Risk, BOR 3 Risk and Persecution Risk can be seen from §§30 to 46 of the Board’s Decision.  The Board also considered the COI materials and assessed the risk of harm, state protection and viability of internal relocation.

5.  While the Court should examine whether the procedure adopted by the primary decision maker meets the high standard of fairness, the merits of non-refoulement claim are essentially matters for the primary decision-maker.  The evaluation of risk of harm is primarily a matter for the Board.  The Board is entitled to make its evaluation based on the evidence available.  It is well-established that the role of the Court in a judicial review is not to provide a further avenue of appeal: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524, etc.

6.  Having considered the Board’s Decisions with rigorous examination and anxious scrutiny as required by law, I do not find, nor has the Applicant shown, any error of law or procedural unfairness, or any failure on the Board’s part to apply high standards of fairness in its consideration and assessment of the Applicant’s claim: see Re Zunariyah (supra) at §22.  In the present case, the Applicant has been unable to identify any specific grounds in support of her intended judicial review in Form 86: see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (dated 22 December 2016) at §142.  Other than indicating that she would like to apply for judicial review and exhibiting a copy of the Board’s Decision, the Applicant’s supporting affirmation contains no facts or materials of substance. 

7.  I am therefore not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success at all: see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676.

Conclusion

8.  For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed.

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