MOUNGUN ATICHADA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1730/2023

[2025] HKCFI 5438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1730 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 / the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Thailand who arrived in Hong Kong on 28 February 2020 as a visitor with permission to remain as such up to 29 March 2020 when he did not depart and instead overstayed, and was arrested by police on 9 September 2021 for which he was subsequently convicted and sentenced to prison for 2 weeks. After his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim for protection on the basis that if he returned to Thailand he would be harmed or killed by his father due to their dispute over his sex re‑assignment to become a female. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Amphur Muang Phrae, Phrae Province, Thailand. Since in kindergarten the Applicant felt like a girl and considered himself as one, which was however not accepted by his father who would scold and abuse him whenever he was drunk.

3.  After leaving school the Applicant ran away from home to Bangkok and Pattaya, and in 2017 he underwent sex re-assignment from male to female, and thereafter attended various beauty contests, and later formed a relationship with a Russian boyfriend.

4.  Upon learning about his sex re-assignment his father became furious and threatened to kill him, and so the Applicant on 28 February 2020 departed Thailand for Hong Kong and subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 June 2022 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 29 August 2022 the Director of Immigration (“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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his father over his sex re-assignment upon his return to Thailand as low due to the low intensity and frequency of past ill-treatment from his father, that there is no evidence of any real intention of his father to seriously harm or kill him other than angry words and empty threats, that in any event it was a private relationship dispute between just the 2 of them 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 70 million people spread across a vast territory of more than 513,000 square kilometers that it would not be unduly harsh for the Applicant as an able‑bodied young adult with working experience to move to other areas of the country away from his home district in large cities such as Bangkok where it would be difficult if not impossible for his father to locate him.

7.  On 7 September 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 6 July 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 September 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board accepted the Applicant’s claim of threats from his father over his gender identity but found no reliable evidence of any real intention of his father to seriously harm or kill him given the amply opportunities for his father to do so other than just angry words and empty threats, and that in any event it was a private relationship dispute between him and his father only without any official involvement that state or police protection would be available to the Applicant upon his return to Thailand, while relevant COI also shows that if necessary the Applicant can rely on support from relevant organizations such as Foundation of Thai Transgender Alliance for Human Rights as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his father that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 27 September 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board reached the decision wrongly in assessing his non‑refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his right to life is protected under Article 28 of the basic law and Article 2 of the Bill of Rights;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7)  That the Adjudicator misdirected himself on the law by failing to consider and assess whether state protection existed under extended meaning of state protection under the State’s due diligence obligations under Article 3 CAT for Torture and Article 3 HKBOR for Torture and CIDTP;

(8)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

10.  These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to the Applicant’s case when on the factual basis of even his own case that it was a private dispute between him and his father over his gender identity only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

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 decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Thailand, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his 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