RE PAKPONGSIRI THIDARUT

CACV 216/2025, [2025] HKCA 985

On appeal from [2025] HKCFI 1050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 216 OF 2025

(ON APPEAL FROM HCAL NO. 2579 OF 2019)

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REASONS FOR JUDGMENT

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Hon Chu VP (giving the Reasons for Judgment of the Court):

1.  This is the applicant’s appeal against the judgment of Deputy High Court Judge K.W. Lung (“the Judge”) given on 15 April 2025 ([2025] HKCFI 1050) dismissing her application for leave to apply for judicial review. The intended judicial review was in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 22 March 2019, which dismissed her appeal against the decision of the Director of Immigration (“the Director”) dated 26 February 2018 rejecting her non-refoulement protection claim.

2.  The applicant was absent at the hearing on 23 October 2025.  We had proceeded to dismiss her appeal and said we would give our reasons later, which we now do.

The applicant’s claim

3.  The applicant is a Thai national, aged 41.  She entered Hong Kong on 8 March 2014 as a visitor, after which she left for Macau and returned to Hong Kong on 5 May 2014.  When the permission for her stay expired on 8 May 2014, she did not depart and has since overstayed.  On 26 September 2017, she was arrested by the police.  

4.  On 25 October 2017, the applicant lodged a non-refoulement claim based on fear of being harmed or killed by (i) her stepfather (“Somsap”) who had abused her; and (ii) loan sharks to whom her stepfather owes money.  Her claim was set out in detail in [6] of the Director’s decision and [33] to [45] of the Board’s decision.

5.  In gist, the applicant claims that after her father passed away in 2000, her mother remarried Somsap, who is a gambler, drinker and womanizer.  The applicant’s mother deserted him in 2002, leaving the applicant with him.  The applicant complains of many instances of physical abuse by Somsap.  In a most serious incident, he smashed her head with a beer bottle.  Though she had sought medical help and was hospitalised, she did not report it or any of the abuses to the police for fear that she would have no one to depend on if her stepfather was taken away and she also feared being further assaulted by him.  The applicant also claims that from 2011 to 2014, loan sharks often came to her home to demand interest payments of a loan owed by Somsap.  She was assaulted by them on various occasions, but she had not reported them to the police.  In early 2014, she decided to leave so as to flee from the loan sharks.  With the help of a friend, she came to Hong Kong.

The Director’s and the Board’s decisions

6.  By a decision dated 26 February 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. 

7.  The applicant appealed to the Board.  An oral hearing took place on 14 December 2018 during which the applicant testified and answered questions put by the Board.  By a decision dated 22 March 2019, the Board dismissed the appeal.

8.  In summary, the Board found that the applicant’s inaction   for more than three years after arriving in Hong Kong and the lack of extrinsic evidence to support her claim were detrimental to her credibility ([49] to [50]). The Board also considered that, even if the applicant’s claims of abuse and assaults were true, it was not shown that she could not access state protection if refouled, noting that while the country-of-origin information (COI) showed that corruption is widespread among the police in Thailand, it could not be concluded that state protection was unavailable to the applicant since she had never reported to or sought help from the police ([52] to [54]).  The Board further considered that internal relocation to Bangkok or Chiangmai was feasible and the chance of her being located by her stepfather or the debt collectors was negligible ([71] to [75]).   Overall, the Board was not satisfied that the applicant has established an entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

9.  On 4 September 2019, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose. As the Board’s decision was dated 22 March 2019, the applicant’s Form 86 was late by five months.  The applicant did not provide any explanation for her delay.  She also did not provide any ground for seeking relief, other than stating in her supporting affirmation that she would like to reject and review the Board’s decision as her dangerous situation was disregarded.

10.  The Judge heard the application at an oral hearing on 3 March 2025.  By his judgment dated 15 April 2025, the Judge refused to extend the time for the applicant to apply for judicial review and dismissed her leave application.  He gave his reasons at [13] to [18] as follows:

“13.   As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.   The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.   The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board might have made a correction decision.

16.   In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.   (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board.”

17.   The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

18.   The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

This appeal

11.  By a notice of appeal dated 22 April 2025, the applicant appealed the Judge’s decision to this court.  The grounds of appeal stated that the Board did not give weight to the gravity of her circumstances and she should be given an opportunity to plead her case properly.  She also filed an affirmation which did not add to or elaborate on the grounds of appeal.

12.  The applicant’s written submissions lodged on 5 September 2025 stated the following:

(1)   High standards of fairness are required on the part of decision maker in the determination of torture claims as life and limb are in jeopardy.  The applicant’s fundamental human right not to be subjected to torture is involved.

(2)   The adjudicator acted in a procedurally unfair manner in dealing with the applicants’ application without properly assessing her credibility.  The decision of an administrative body can be set aside if it is Wednesbury unreasonable.

(3)   For the late filing of a notice of appeal to the Board, section 32ZT of the Immigration Ordinance Cap. 115 stipulates that the Board may take into account the statement of reasons in the application for late filing, the documentary evidence and any other relevant matters of fact within the knowledge of the Board. 

Our reasons for judgment

13.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board.

14.  In light of the established legal principles set out above, we are of the view that the appeal has no merits.  Our reasons are as follows:

(1)   The applicant was five months late when she filed her Form 86.  She has to show there are good reasons for the delay: AW v Director of Immigration and Anor CACV 63 of 2015, 2 November 2015 at [27].  Both in her application papers and before the Judge, the applicant did not explain her delay.  She had also failed to put forward any ground to support her challenge to the Board’s decision.  In the circumstances, there was simply no proper basis for the Judge to extend the time for her to apply for judicial review.  On this ground alone, her leave application falls to be dismissed.

(2)   The complaint in the notice of appeal that the Board’s failure to give weight to her circumstances or consider her hardship is no more than a vague assertion that is unsupported by particulars.  The applicant has not identified how and in what ways the Board has erred, and how such failure has impacted the Board’s findings and conclusion on her claim.  In our view, the Board had given adequate consideration to, and analysis of, her claim, including her accounts of abuse and assault, as well as the relevant COI. The Board had also given adequate reasons to explain its assessment of the evidence and its credibility and also the risk of harm claimed by the applicant.  The Board was entitled to reach the findings on the claim for the reasons it had given.

(3)   Furthermore, the applicant’s complaint that she should be given the opportunity to prove her case properly cannot stand given that she had the opportunity of testifying before the Board and clarifying various aspects of her claim (see [30], [33] to [45] of the Board’s decision).

(4)   With regard to the general principles of law and quotes from the cases in the written submissions, the applicant has not explained how they relate or apply to her case.  She has not indicated whether, and if so how, the Judge had erred in light of these legal principles.  

(5)   The reference in her written submissions to section 32ZT of the Immigration Ordinance on late filing of the notice of appeal to the Board and the matters to be taken into account by the Board is irrelevant because there was no delay in the appeal to the Board.  The applicant’s delay was in respect of the filing of the Form 86.   

14.   For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.