PRAWIT YUSUK v. DIRECTOR OF IMMIGRATION

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   Extension of time to file the Form 86 is refused; and

2.   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 25 March 2026 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 11 December 2025 (the “2025 Notice”) refusing his request to make a subsequent claim (the “Request”).

2.  On 2 April 2026, the Court received a copy of a Submission Sheet from the Applicant via the Immigration Department asserting that he need to go back to his home country and requesting arrangement for his travel document and air ticket and assistance to “cancel [his] Habeas Corpus and judicial review”. The document is a submission sheet from inmates to the correctional institution and not to the court.  Apart from the fact that the document is not addressed to the court as a proper application, it is not clear if the Applicant understands the purpose of his request to the court, in particular, if his application to “cancel” his leave application was made voluntarily and with a full understanding of the consequences. 

3.  The Applicant had not requested an oral hearing.  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 the leave application may be justly determined on paper without an oral hearing. That will quickly dispose of his application so that he could decide the proper course to take with benefit of the outcome of his leave application.  The Court considers it in his best interest to not to treat his Submission Sheet as a proper application to court and to make no order in relation to his request therein. 

Explanation for the late application

4.  The leave application was filed three months and fourteen days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged eleven days out of time.  Extension of time to file the leave application is required.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors. 

5.  The Applicant’s explanation for the delay is that he only recently received funds from his family to enable him to file the leave application.  As the delay is not very substantial, that the Applicant has been in custody and that the Court is determining his application on paper without hearing from the Applicant, the Court gave him the benefit of doubt that his lack of financial means may have some bearing for the delay.  The Court therefore proceeds to consider merits of the leave application. 

The background

6.  The Applicant is a Thai national, now aged 38.  He had previously lodged a non-refoulement claim with the Director on 4 April and 16 May 2014 by written signification (the “previous claim”).  His previous claims under Torture Risk, BOR 3 Risk and Persecution Risk grounds were rejected by the Director’s decision in his Notice of Decision dated 14 October 2016 (the “Notice”).  His appeal against the Notice was dismissed by the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 18 June 2020 (the “First Decision”).  His previous claim under BOR 2 Risk ground was rejected by the Director’s decision in his Notice of Further Decision dated 3 October 2017 (the “Further Notice”).  His appeal against the Further Notice was dismissed by the Board’s decision dated 18 June 2020 (the “Second Decision”).

7.  On 1 November 2021, the Applicant lodged a leave application in respect of the Second Decision out of time.  His leave application was refused by this Court on 4 April 2022.  His subsequent appeals against that decision ended on 27 October 2023 with the Court of Appeal dismissing his Notice of Motion to appeal to the Court of Final Appeal.  His previous claim has run its full course.

8.  By his letter dated 23 October 2025, the Applicant made a request for making a subsequent claim.  His request was processed in the usual course and refused by the decision of the Director in his 2025 Notice.  The Applicant now seeks leave to apply for judicial review of the 2025 Notice.

The law

9.  Under the Unified Screening Mechanism, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance.  The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant.

The previous claim

10.  In his previous claim, the Applicant claimed, if returned to Thailand, he will be harmed or even killed (1) by members of the Dek Ban Rai drug gang (the “DBR”) for having given information to the police leading to their arrest and imprisonment; and by police officers associated with the DBR.  The immigration officer who assessed his previous claim (the “previous case officer”) found among other things that the risk of harm or being killed by his enemy upon his return to Thailand was not likely to materialize and internal relocation and state protection are available to avoid or reduce the risk of harm.  In addition, the Board had serious concerns about the reliability and credibility of his evidence and rejected his claim that he acted as a police informer.

The intended subsequent claim

11.  In the intended subsequent claim, the Applicant claimed that the gangsters from the DBR whom he helped to put into prison are now released and are setting him up for a drug offence by placing a huge quantity of drugs in his apartment which led to his girlfriend being arrested and sentenced to life imprisonment.  In addition, he claimed fear from certain members of his family for his assistance to the police leading to the arrest of the DBR members. 

12.  The Applicant claimed he had two sources of harm.  The immigration officer found the first source of harm is from the same gangsters from the DBR and the police officers associated with them, which had been considered in the previous claim.  That part of his Request is therefore largely a reiteration or continuation of his previous claim.  As for his second source of harm from his own family members, the immigration officer found it also stems from his alleged assistance to the police as an informer leading to the arrest of the DBR members.  However, as the Board had rejected his evidence that he had acted as an informer, this new source of harm could not be substantiated.  The immigration officer therefore found there was no significant change in circumstance warranting the making of a subsequent claim. 

13.  For completeness, the immigration officer also reviewed updated country of origin information (“COI”) and found there is no significant change of situation in his home country that would lead to state protection and internal relocation being unavailable to the Applicant on his return to Thailand.  He also found updated COI published by Bangkok Post on 9 December 2025 reporting that the Thai government is willing to take action against criminals, even though they are drug dealers or corrupt government officials.  That would further ease the Applicant’s concerns about the DBR members and the police officers associated with them.  For all these reasons, the immigration officer refused the Applicant’s Request.

The legal principles applicable to judicial review

14.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

15.  The Applicant advanced the following five grounds of application in his written submission in support of his leave application:

(1)   the decision in the 2025 Notice is not reasonable and right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Right:

(2)   the right to life is protected by the criminal law, the Applicant must be protected against extra-judicial killing;

(3)   the Director failed to take such arguments into account or to give enough weight to such argument before making the decision in the 2025 Notice;

(4)   the judge was wrong as a matter of law for having applied the principle of procedural unfairness to the decision of the Director in the 2025 Notice;

(5)   the judge was wrong as a matter of law for not having applied the principle of irrationality to the decision by the Director in the 2025 Notice; and

(6)   that his life is in danger if returned to Thailand.

16.  The legal principles quoted in Grounds (1) and (2) are accepted.  However, Ground (1) is lacking in particulars as to what is unreasonable in the Notice and as to the argument in support of the complained unreasonableness.  Ground (2) is lacking in particulars as to what is wrong with the 2025 Notice.

17.  Ground (3) is lacking in particulars as to what argument the Director has not taking into account or given enough weight.  Furthermore, the weight to be given to any piece of evidence or argument is largely a matter of weight for the decision maker, ie the Director, which is not challengeable in a judicial review.

18.  Grounds (4) and (5) are directed at the judge.  Hitherto, no judge was involved in the making of the decision in 2025 Notice.  Even if the Applicant is anticipating errors to be made by this Court, at least at this stage, these grounds are not engaged.

19.  Ground (6) is a direct challenge of the Director’s finding of fact in the 2025 Notice.  This is impermissible in an application for judicial review, save for errors of law, procedural unfairness or irrationality in the Decision.

20.  In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

21.  Having considered the Request, the Director’s Notice and Further Notice, the Board’s First Decision and Second Decision, and having rigorously examined the Director’s 2025 Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO of the Immigration Ordinance, correctly identified the issues, and properly analyzed the evidence.

22.  The immigration officer observed a very high standard of fairness.  He advised the Applicant on the law and procedure in prosecuting his Request and advised him of his right to legal representation and the availability of publicly funded legal assistance, though the DLS declined to represent him.  The immigration officer acted fairly. 

23.  The Applicant claimed two sources of harm, namely, the same gangsters from the DBR and the police officers associated with them, and the Applicant’s own family members because he had given information leading to the arrest of the DBR members.  The first source of harm had been considered by the case officer and the Board in the previous claim.  The second source of harm is premised on facts which had been rejected by the Board.  In addition, the previous case officer had found state protection and internal relocation are feasible options to avoid or mitigate the risk of harm.  These facts are incontrovertible.  On the facts, it is open to the immigration officer to make these finding of fact.  On the law, it is open to the immigration officer to find that the Applicant is not entitled to make a subsequent claim and hence refused his Request.  Insofar as these are finding of the law, they are absolutely correct.  Insofar as these are finding of fact, they are exclusively within the province of the Director, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  This Court could detect no error of law or procedural unfairness in the 2025 Notice.  The 2025 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. It would be futile to grant him extension of time to file the leave application.

Conclusion

24.  For the above reasons, the Court makes no order in relation to his application in his Submission Sheet, and refuses to grant him extension of time to file the leave application and to apply for judicial review of the Director’s decision in his 2025 Notice.

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