BUTWONG CHANAPA v. TORTURE CLAIMS APPEAL BOARD

HCAL 256/2026

[2026] HKCFI 2508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 256 OF 2026

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 26 January 2026, 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 2 October 2025 (“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/2026/HCAL000256_2026_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 30 July 2025 (“the Director’s Decision”) was not substantiated on any of the applicable grounds under the Unified Screening Mechanism (“USM”).  Hence, the Board dismissed the applicant’s appeal/petition and confirmed the Director’s Decision, 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” and the Director as the putative respondents and spelt the Director’s name wrong.  She also named the Board as the putative interested party.

4.  In fact, only the Board should be the putative respondent and the Director should be 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 putative respondent at all. 

6.  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

7.  The applicant claimed for non-refoulement protection because if refouled to Thailand, she would be killed by John, the boyfriend of the applicant’s friend Ann, from whom she had borrowed a sum of 600,000 Thai Baht and she was unable to repay the loan to John.

Withdrawal of the Leave Application

8.  By her affirmation dated 5 February 2026, the applicant applied to cancel the Leave Application and stated that she wanted to return to Thailand.  However, she did not state that her problem in her country had been resolved or that she would be safe to return. 

9.  There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition.  With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.

10.  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.”

11.  Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to deal with the merits of the Leave Application.

Grounds for judicial review

12.  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).

13.  The applicant did not advance any grounds for the intended judicial review in her Form 86, nor in her supporting affirmation dated 26 January 2026.  She merely stated in the affirmation that she made the affirmation to apply for judicial review of the Board’s Decision (although she had wrongly stated the date of the Board’s Decision as 23 September 2025, which was in fact the date of the oral hearing before the Board).

Discussion

14.  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).

15.  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.

16.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 23 September 2025 and the applicant was present.  Thus, the applicant was given the opportunity to present her case to the Board in person.

17.  As can be seen from the Board’s Decision, the Board did not challenge the credibility of the applicant’s account and assessed the applicant’s case based on what the applicant had presented to the Board.

18.  However, even on the applicant’s own account, the Board found that the applicant in fact had never been physically attacked by her creditor.  The applicant’s creditor had no real intention to carry out his threat to kill her, as the creditor could easily do so with his pistol that was shown to the applicant in the first incident.  In the second incident, the creditor agreed to give the applicant time to repay the loan and left without harming her or even repeating his threat on her.  The applicant’s ability to move and stay in different locations within Thailand without being found by the creditor showed that the creditor was not as powerful as the applicant alleged.

19.  The Board found that the ill-treatment by the applicant’s creditor did not reach a minimum level of severity or the level of severe harm or suffering as defined by torture under section 37U of the Immigration Ordinance (“the Ordinance”).

20.  The dispute between the applicant and the creditor was private in nature.  Any ill-treatment that was inflicted upon the applicant was not for the any of the reasons as defined by the same section of the Ordinance, or for any Convention reasons.  There was no evidence to show state acquiescence in the applicant’s case, or that the state was unwilling or unable to protect the applicant.  The applicant had never asked for assistance from the police in Thailand.

21.  Further, the Board found from country of origin information (“COI”) that despite shortcomings, the Thai government was implementing measures to combat corruption, improve police efficiency, and crack down illegal loan shark activities.  The Board was satisfied that reasonable state protection would be available to the applicant should she need it.

22.  Thus, the Board concluded that the applicant did not face a real risk of any of the proscribed forms of harm upon refoulement.

23.  Although the Board noted that given its findings, it was not strictly necessary for it to consider the viability of internal relocation for the applicant, the Board did consider the applicant’s concern that her creditor might be able to locate her even if she relocated to another area of Thailand.  On the available evidence before it, the Board found that there was no reliable evidence to show that the applicant’s creditor had the huge network to locate her in every large city within the country and to harm her.

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

25.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board.  The Board was entitled to come to its own conclusion.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

26.  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.

27.  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

28.  For reasons aforesaid, the application 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