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HCAL 403/2022
[2026] HKCFI 3022
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 403 OF 2022
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BETWEEN
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Thamani, Suthasinee |
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 “Director of Immigration” be added as the putative interested party.
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 30 May 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 4 May 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/HCAL000403_2022_files/the_Board's_Decision.pdf
2. The Board found that the applicant failed 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 23 June 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named the Board and Non-refoulement Claims Petition Office as the putative respondents and did not name any putative interested party in Form 86.
4. In fact, only the Board should be named as the putative respondent and the Director 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 respondent 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 to add “Director of Immigration” as the putative interested party.
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 feared being ill-treated or even killed by her boyfriend named Jaran who repeatedly forced her to borrow loans for him. She also feared that her creditor Somphat might harm her as she had not yet settled the outstanding 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 30 May 2022.
Discussion
12. 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).
13. 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.
14. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 6 September 2021. The applicant was present and was thus given the chance to present her case to the Board in person.
15. As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.
16. The Board found that the testimony of the applicant at the Board’s hearing was generally coherent and consistent. The existence of her loan was generally supported. Hence, the Board took no issue on the applicant’s credibility.
17. It was the applicant’s case that her father expected to receive a land resumption compensation in 2022 from the government, and he would help the applicant to settle the loan she owed to Somphat. The applicant confirmed that Somphat did not pose any threats to her. Hence, the applicant’s only risk of harm came from her boyfriend Jaran.
18. With regards to the threats from Jaran, the Board found that the applicant’s issues with her boyfriend did not involve the state. There was nothing in her case that could show state acquiescence or could establish the existence of any Convention reasons. The Board found from the applicant’s evidence that Jaran had committed a number of serious offences. If the applicant, upon her return to Thailand, reported the illegal acts of Jaran to the police, there was no reason why the police would not take action against Jaran who would likely to be imprisoned for a lengthy period of time. As a key witness, the applicant would receive protection from the authority. Moreover, the applicant would also be protected by her parents and elder brother. The Board found that the applicant’s risk of harm from Jaran was unlikely to materialize.
19. Moreover, the Board had laid out its findings on the availability of state protection and the viability of internal relocation for the applicant in paragraphs 64 to 72 of the Board’s Decision.
20. In gist, 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 refoulement. Moreover, internal relocation was viable for the applicant. The Board was of the view that it would be unrealistic to speculate that her boyfriend would have the ability and resources to conduct a nationwide search for the applicant after her relocation.
21. Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.
22. 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.
23. 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.
24. 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
25. 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 18228/21/7/28/TH85
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 693/21 (Formerly RBCZ 10265/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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