WONGPHIPHIT NICHAPAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 774/2022

[2026] HKCFI 1908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 774 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

1.   Form 86 be amended, naming only the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.  By Form 86 dated 16 August 2022 (“Form 86”), the Applicant seeks leave to apply for judicial review (“Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”) dated 28 July 2022 (“Board’s Decision”), which affirmed the Decision of the Director of Immigration (“Director”) dated 21 January 2022.

2.  The Applicant did not request an oral hearing.  I determined her Leave Application on the papers accordingly: O 53, r 5(3) of the Rules of the High Court (Cap 4A).

3.  The Form 86 incorrectly named the Board as putative interested party.  I therefore amend the Form 86 on my own motion to name the Director as the putative interested party.

Background

4.  The Applicant is a national of Thailand.  Her background and the basis of her application for non-refoulement were set out in detail in the Board’s Decision at this hyperlink.[1]  I will not repeat them here.  Unless otherwise specified, I adopt the abbreviations in the Board’s Decision.

5.  In short, the Applicant claimed to be in fear of her husband seeking revenge against her for having stabbed him, and of being sent to prison for injuring her husband (as she was worried about prison conditions).

Discussion

6.  Leave application is meant to be a filtering process and the court is not expected to give elaborate reasons for its decision: Re Zunariyah [2018] HKCA 14 at §23. I therefore set out below brief reasons for my decision, which I have reached upon considering all the materials before me.

7.  The court’s role in judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court adopts in non-refoulement cases an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, it 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1). There must be a reasonably arguable case, namely one which enjoys a realistic prospect of success, before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17.

8.  In a proper Form 86, an applicant is required to state the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at §142.  He or she is also under a duty to make full and frank disclosure of material facts: Kan Hung Cheung v The Director of Immigration [2008] HKC 323 at §§14-17.

9.  In this Leave Application, the Applicant has not stated any ground of judicial review.  She has not identified any error of law or procedural unfairness or irrationality in the Board’s Decision to demonstrate a reasonably arguable case.

10.  In any event, I have reviewed the Board’s Decision and I do not detect any error of law, procedural unfairness or irrationality.  The Board assessed the evidence in detail and gave adequate reasons for its decision.  In particular:

(1)   The Board did not regard the Applicant as having made out a case that her husband would kill or seriously injure her if she was returned to Thailand.  The Board took into account the fact that the husband never exhibited any violent tendency toward or physically mistreated the Applicant: §§9, 63.  The Board also considered the fact that her husband had not been mentioned in any of the conversations between the Applicant and her family since she arrived in Hong Kong and it appeared that he had made no further threats against her: §66.

(2)   As to the Applicant’s fear of being arrested, the Board found that there was no evidence that her husband ever reported his injury to the police and the Applicant was able to obtain a passport and leave for Hong Kong through a Thailand airport without any problems in 2018. There had also not been any investigation by the police into her husband’s injuries: §§70-72.

(3)   In any event, the Board found that even if the Applicant were able to show a real or genuine risk of harm, such risk was localised in the area where her husband resided.  The Board did not perceive any problem for the Applicant to relocate if necessary to other cities such as Phuket or Udon Thani, taking into account her education background and work experience: §§76-78.

11.  In the premises, I conclude that the Applicant’s intended challenge against the Board’s Decision is not reasonably arguable. 

Conclusion

12.  I make an order that the Form 86 be amended in the manner set out above and that the Leave Application 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