RENGNGAN JIRAPORN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1939/2023

[2026] HKCFI 3881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1939 OF 2023

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board’s Decision”).

2.  The applicant did not ask for a hearing.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration (“the Director”) is the interested party.

The Applicant

4.  The applicant is a 38-year-old national of Thailand who entered Hong Kong legally on the strength of a tourist visa on 12 March 2020. Her visa was extended to 25 July 2020. However, she did not leave Hong Kong and had overstayed. She was arrested by the police on 2 June 2021. On 5 June 2021, she lodged a written non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her creditors.

5.  Details of her claim are set out in the Board’s Decision. See hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001939_2023_files/the_Board's_Decision.pdf

The Director’s Decision

6.  By a Notice of Decision dated 31 March 2022 the Director rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.  The Director took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from her creditors and upon her return to Thailand as highly unlikely, that there is no evidence of any real intention of her creditors to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditors only without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Thailand with a large population of 69 million people spread across a vast territory of more than 510,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Bangkok or Phuket where it would be difficult if not impossible for her creditors to locate her.

The Board’s Decision

8.  On 11 April 2022, the applicant lodged an appeal to the Board against the Director’s decision, and for which she attended an oral hearing on 25 May 2023 before the Board during which she gave evidence and answered questions raised of her claim by the adjudicator for the Board. On 29 September 2023, her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  The Board did not accept the applicant’s claim of threats from her creditors over her debts and found no reliable evidence of any real intention of her creditors to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditors only without any official involvement that state or police protection would be available to the applicant upon her return to Thailand as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her creditors that her claim for non-refoulement protection failed on all applicable grounds. 

10.  On 27 October 2023, the applicant filed the Form 86 for leave to apply for judicial review of the Board’s Decision but did not put forward any specific grounds for her intended challenge, whether in the Form 86 itself or in her affirmation in support of the application.   

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

12.  In the applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is highly improbable. Even if real, it is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Thailand, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.  Having considered the Board’s Decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the applicant’s claim.

14.  In the premises, for the reasons stated above, I am of the view that there is no prospect of success in the applicant’s intended application for judicial review. I accordingly dismiss her leave application.

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