BUAKHOM ACHIRAVAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 39/2022

[2026] HKCFI 2945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 39 OF 2022

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 “Director of Immigration” be added as the putative interested party.

2.   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 11 January 2022, 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 13 December 2021 (“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/2022/HCAL000039_2022_files/the_Board's_ Decision.pdf

2.  The Board found that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 April 2021 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  The applicant named “TORTURE CLAIMS APPEAL BOARD NON-REFOULEMENT CLAIMS PETTITION OFFICE” as the putative respondent and did not name any putative interested party in Form 86.

4.  In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.  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 respondent at all.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

The applicant’s case

7.  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.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to Thailand, he would be harmed or killed by his creditor due to his inability to repay his loan.

Disposal on paper

9.  The applicant did not request for an oral hearing of the Leave Application.  This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.  Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

10.  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).

11.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 11 January 2022.

Discussion

12.  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).

13.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 17 September 2021.  The applicant was present and was thus given the chance to present his case to the Board in person.

15.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. 

16.  After intensive questioning of the applicant, the Board found that the applicant failed to provide any evidence to show the existence of the loans.  The applicant could not even tell the Board the amount outstanding or the amount that had been repaid in the past.

17.  Moreover, the applicant was only assaulted twice and the injuries sustained were not serious.  Although the applicant asserted that he had been abducted twice, he was free to leave after about an hour or two.  The Board was of the view that the creditor had no real intention to seriously harm or kill the applicant.  The ill-treatment inflicted upon the applicant did not attain the level of severity required for international protection.

18.  Moreover, the dispute between the applicant and the creditor was purely a personal dispute arising from the applicant’s failure to repay a loan.  The applicant’s case did not meet the elements of torture.  His fear of the creditor was not for a Convention reason either.

19.  Further, the Board found that reasonable state protection was in place in Thailand.  It was only the applicant’s choice not to seek help from the police and/or the authorities.

20.  Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

21.  Although the Board did not make findings as to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

22.  As it was the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it was not necessary for the Board to consider internal relocation.

23.  The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition.  This court finds nothing wrong or unreasonable in the way the Board reached its decision.

24.  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. 

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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

26.  For reasons aforesaid, 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