BUAYAD CHOMNAPAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 500/2023

[2025] HKCFI 5537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 500 OF 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 29 March 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 17 February 2023 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000500_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to demonstrate that she was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed her appeal/petition and affirmed the decision of the Director of Immigration (“the Director”) dated 28 January 2022, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named “TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE” as both the putative respondents and the putative interested parties, when only the Board should be named as the putative respondent and the Director should be named as the putative interested party. 

4.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and should not be named as a putative party at all.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Thailand, she would be harmed or killed by her boyfriend named Gathong Thirawat as she refused to give him money.

Withdrawal of the Leave Application

8.  By a letter dated 9 June 2025, the Director informed this court that the applicant stated her intention to withdraw the Leave Application in her letter dated 6 June 2025, which was addressed to the Registrar of this court.  In her said letter, the applicant stated that “My issues in my home country have been resolved, and I can return home”.

9.  By a further letter dated 27 August 2025, the Director informed this court that the applicant was removed on 10 July 2025.

10.  There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

11.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

12.  Thus, it is not right to leave the action at large.  The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the merits of the Leave Application.

Grounds for judicial review

13.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

14.  The applicant did not advance any ground for the intended judicial review in her Form 86, nor in her supporting affirmation dated 29 March 2023.

Discussion

15.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration, [2018] HKCA 524).

16.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

17.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 3 January 2023 and the applicant was present.  Thus, the applicant did have the chance to present her case to the Board in person.

18.  After due consideration of the evidence and the oral testimony of the applicant, the Board did not find that the evidence in the applicant’s claim was reliable and credible, even to the low standard required.  The Board was therefore unable to attach any weight to the applicant’s claim that she would face the risk of harm from her boyfriend in Thailand if refouled.  Thus, the Board rejected the applicant’s evidence and found that her claim based on all the applicable grounds under the USM failed.

19.  The assessment of evidence and risk of harm was primarily within the realm of the Board.  The Board was entitled to reach its decision.  The applicant’s alleged danger in her home country had indeed been duly assessed by the Board.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

20.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

21.  In fact, as the applicant had confirmed that her issues in her home country had been resolved and she could return home, there is absolutely no ground for her to make any non-refoulement claim and the Leave Application serves no practical purpose.

22.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

23.  Even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as her issues in her home country have been resolved. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

24.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

25.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

26.  For reasons aforesaid, the application for leave to withdraw the Leave Application is refused and the Leave Application is 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