THAIBAMRUNG NATTHANAPHAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following;

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 12 April 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 10 January 2022 (the “Board’s Decision”).

2.  The Applicant filed 2 affirmations under the present case (HCAL 184/2022) – her first Affirmation dated 28 March 2022 and filed on 12 April 2022 (“the 1^st Affirmation”) and her second Affirmation dated April 2024[1] and filed on 24 April 2024 (“the 2^nd Affirmation”).  In the 2^nd Affirmation, the Applicant stated in the first paragraph that the affirmation was in fact made to support her “application for leave to apply for judicial review of the Notice of Decision (“the Decisions”) of the Respondent of my request for making a subsequent claim dated 24 January 2024” (“the Subsequent Claim Decision”).  As the 2^nd Affirmation does not concern the Leave Application, I will not consider the content therein for the purpose of this Leave Application.  I note that the Applicant has not taken out any application in relation to the Subsequent Claim Decision.  Should the Applicant consider appropriate, it is for her to take out any application which she wishes to make in relation to the Subsequent Claim Decision.

3.  The Applicant requested an oral hearing for the Leave Application.  The hearing took place on 20 January 2026 (the “Hearing”) but the Applicant was absent.  Notice of Hearing was issued to the Applicant in advance at the address provided by the Immigration Department on 17 December 2025.

4.  On 13 January 2026 and 19 January 2026, attempts were made to contact the Applicant by phone at the number provided by the Immigration Department but in vain.  I take the view that sufficient notice had been given to the Applicant in respect of the Hearing.  I will proceed with the Hearing in the absence of the Applicant.

Background

5.  The Applicant’s background, the basis of her claim and the arguments she advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[2] for reference.

Discussion

6.  In the Form, the Applicant raised various grounds in support of the Leave Application, some concern the Director of Immigration while the others concern the Board in reaching the Board’s Decision. I will summarise those relating to the Board’s Decision below, as they are the grounds relevant to the Leave Application:

(1)   The Board’s Decision was not reasonable or fair. The Board has failed to attain the high standard of fairness required by the Wednesbury test. The right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that the Applicant may face if he is refouled to Thailand;

(2)   The Board’s Decision was irrational; and

(3)   Various human rights organisations have compiled reports which confirm the Applicant’s contentions.

7.  The relevant legal principles are well established.  The Court’s role 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 the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, 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, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para. 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

8.  Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

9.  I have reviewed the Board’s Decision in detail.  The Board had fully considered all the evidence, including the COI, and the Applicant’s grounds for challenging the Director’s decision in refusing her claim for non-refoulment protection.  The Board took the view that the Applicant was not under any real risk of the proscribed harm relied on by the Applicant from her father or the Thailand authorities if she returns to Thailand: see the Board’s Decision paras. 32-77.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision. The Applicant’s complaints in the Form have no merits.

10.  Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para. 23.  I have considered all the relevant documents and the grounds raised by the Applicant in reaching the present decision.

Conclusion

11.  For the reasons stated above, I will dismiss the 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