SAIYAPA PREM v. TORTURE CLAIMS APPEAL BOARD

HCAL 446/2024

[2026] HKCFI 1860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 446 OF 2024

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

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

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Thailand who arrived in Hong Kong on 9 December 2019 as a visitor with permission to remain as such up to 16 December 2019 when he did not depart and instead overstayed, and was arrested by police on 18 July 2021 for possession of a faked identity card, and was subsequently convicted and sentenced to prison for 12 months, during which he raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Thailand he would be harmed or killed by his former employer over their monetary dispute.

2.  The Applicant was born and raised in 104/1, Village No.18, Nonthong Sub-District, Nong Rua District, Khon Kaen Province, Thailand. After leaving school he worked in various jobs including farming and construction work to make his living.

3.  In late 2018 he was hired by a company to carry out some construction work for a gas station, and for which he was given a lump sum as down payment and expenses for the project to be completed within their agreed period.

4.  However, by November 2019 the company owner Pravit found the progress of his work too slow and terminated his employment and demanded that he returned the balance of the down payment, but when he was unable to do so, Pravit then sent men to threaten him, and after being beaten by those men on several occasions when he suffered cuts and bruises all over his body, the Applicant became fearful for his life and fled from his home into hiding in his father’s place.

5.  In December 2019 he moved to Ban Tak District, and on 9 December 2019 he departed Thailand for Hong Kong when he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 February 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 29 April 2022 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Pravit or his followers upon his return to Thailand as low due to the low intensity and frequency of past ill‑treatment from them, that there is no evidence of any real intention of Pravit to seriously harm or kill him other than to press him to repay the money that he owed, that in any event it was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Thailand with a large population of 69 million people spread across a vast territory of more than 510,000 square kilometers that it would not be unduly harsh for the Applicant as an able‑bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Bangkok where it would be difficult if not impossible for anyone to locate him.

8.  On 5 May 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 April 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 June 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from Pravit and his associates over their monetary dispute that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of Pravit to seriously harm or kill him other than to press him to return the down payment, and that in any event it was a private monetary dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to Thailand as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

10.  On 8 March 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

11.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 21 September 2023, the Applicant was therefore more than 5 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 5 months must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 21 June 2023 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.   

14.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Thailand, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

17.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  It is also of note that the Applicant recently on 27 January 2026 filed an affirmation requesting to withdraw his application but without providing any explanation as to what has happened to his claimed risk in his home country.

19.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his 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