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HCAL 1601/2023
[2026] HKCFI 4270
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1601 OF 2023
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BETWEEN
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Pongngam Jidapa alias Sueparsa Chidapa |
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 11 September 2023, 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 17 August 2023 (“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/2023/HCAL001601_2023_files/the_Board's_Decision.pdf
2. The Board found that the applicant had failed to show that she was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 31 March 2023 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. In Form 86, the applicant named the Board and “Immigration Department” as both the putative respondents and the putative interested parties.
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. 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
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to Thailand, she would be harmed or killed by her creditor named JU due to her inability to repay her loans.
Oral hearing
8. The applicant requested for an oral hearing of the Leave Application, and her case was heard on 16 July 2026.
9. When this court asked the applicant for the grounds of her intended judicial review, she merely replied that she wished to remain in Hong Kong and it would not be safe for her to return to her country, which was her main concern.
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 identify any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 11 September 2023. In the said affirmation, she only stated that she would like to reject and review the Board’s Decision as they disregarded her dangerous situation.
12. As aforesaid, at the oral hearing, the applicant only said that she wished to remain in Hong Kong and it would not be safe for her to return to her country, which was her main concern.
Discussion
13. First of all, the applicant’s danger in her own country had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
14. Her wish to remain in Hong Kong is not a valid ground for judicial review either.
15. 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).
16. Thus, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
17. In assessing the applicant’s appeal/petition, the Board held an oral hearing on 20 July 2023. The applicant was present at the hearing. Thus, the applicant did have a chance to present her case to the Board in person.
18. As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.
19. The Board had laid out its assessment of the applicant’s case in paragraphs 41 to 43 of the Board’s Decision, and it is not necessary to repeat the same here. In gist, although the Board was convinced on the balance of probabilities that the applicant’s account of events was credible, the Board was of the view that JU had no real intention to seriously harm or kill the applicant. The alleged threats were restricted to verbal threats only, and the applicant or her family members had never been harmed by JU over the years. The Board found that it was only the applicant’s mere speculation that JU would realise her threat to harm or kill her upon her return to Thailand.
20. Thus, the Board found that there was not a genuine and substantial risk that the applicant would be harmed or killed by JU. The Board assessed that the applicant’s risk of being harmed by JU as remote and could not be regarded as foreseeable and real.
21. Moreover, having considered the country of origin information (“COI”) and also the totality of evidence given by the applicant, the Board was satisfied that in the future if the applicant so required, meaningful state protection would be available to her.
22. Further, the Board considered that there were alternative places of safety in Thailand for the applicant where she could avoid the alleged risk of violence or threats from JU. The Board found that the applicant could relocate within Thailand without undue hardship to sustain her living and negate the mentioned risk of harm.
23. Thus, the Board did not consider that the applicant would face a real risk of any of the proscribed forms of harm should she return to Thailand, and rejected the applicant’s claims for non-refoulement protection in Hong Kong.
24. The finding of facts, including the assessment of evidence, COI and risk of harm, was primarily within the realm of the Board. The Board was entitled to make its own decision. The applicant’s alleged danger from her creditor had been fully considered but rejected by the Board. This court finds nothing wrong or unreasonable in the way the Board reached its decision.
25. 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.
26. 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
27. For reasons aforesaid, the Leave Application is dismissed.
Dated the 29th day of July 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: 29/07/2026
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: 29/07/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 21655
Director of Immigration
Putative interested party’s ref. no.:
ImmD/CR T/C 190/23 (formerly RBCZ/5000148/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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