RATTANAKHUNTAWONG BUNTHARIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 498/2023

[2026] HKCFI 3078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 498 of 2023

Application for Leave to Apply for Judicial Review

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

Following;

1.   The Applicant’s Form 86 be amended to name only the DOI as a putative  interested party; and

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 29 March 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 2 February 2023 (the “TCAB Decision”), which affirmed a decision by the Director of Immigration (the “DOI”) dated 26 May 2022 in refusing the Applicant’s non-refoulement protection claim.  He named the TCAB as the proposed respondent as well as an interested party.

2.  I amended the Form 86 on my own motion to name only the DOI as a putative interested party.

3.  The Applicant did not request for a hearing and this application is to be dealt with on paper.

Background

4.  The Applicant is a national of Thailand.  He seeks non-refoulement protection on the basis that if he was returned, he would be harmed by loan sharks from whom he and his business partner had borrowed money to fund their business.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers.  This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.  In the Form 86 and his affirmation filed in support of this application, the Applicant did not point to any particular error of law, procedural unfairness or irrationality of the TCAB Decision.

7.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence, including his testimony at the hearing before it, and found and concluded after thorough analysis and assessment that none of his allegations was made out [10-59].

8.  With the correct principles in respect of each of the four applicable grounds under the USM in mind [annex], the TCAB also came to the findings and conclusions that none was made out [60-76].

9.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

10.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the 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