POTIWAT RUJIRAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1147/2025

[2026] HKCFI 3969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1147 of 2025

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;

1.  The Form 86 shall be amended on the court’s own motion.

2.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 19 May 2025, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 11 September 2023 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 18 July 2022 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001147_2025_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named himself as the proposed interested party. As the Director should have been the proper putative interested party, the Form 86 shall be amended on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Thailand, he would be harmed or killed by the loan shark with triad background for an unpaid loan. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At court scheduled hearing on 19 May 2026, the applicant attended the hearing in person, and simply submitted that he would like to continue with his case.

Discussion

5.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The Form 86 and the supporting affirmation provided no such grounds.

7.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4]  In the present case, the Board found the applicant’s evidence incredible and unreliable, and rejected his account regarding the loan and threats from the loan shark. In the event, the Board found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant advanced no grounds at all in support of the Leave Application, and has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. I find that the applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Whether to extend time for the late application

9.  Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date of the Board’s Decision. The Leave Application was late for about 1 year and 5 months.

10.  When this court asked the applicant for the reason for the delay, the applicant stated that he only knew about the procedure about late application during his 3-months’ detention at the immigration detention facility. He was discharged in around July 2024. He said he only later received a letter from the Board from his former address.

11.  I do not accept the applicant had provided good reason for the delay. Firstly, ignorance cannot be accepted as good reason for his purported reason that he only learnt about the procedure during his detention in 2024. Secondly, the applicant’s purported explanation for having received the Board’s Decision late had only scant detail, it also directly contradicted his alleged ignorance.

12.  Having regard to the lengthy delay, and most importantly, the lack of good prospects of success of the intended challenge, I refuse to exercise my discretion to grant the applicant an extension of the time to file the Leave Application out of time.

Orders

13.  The Form 86 shall be amended on the court’s own motion.

14.  There shall be no extension of time for the applicant to file the application for leave to apply for judicial review out of time.

15.  The applicant’s application for leave to apply for judicial review be dismissed.

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