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HCAL 2218/2025
[2025] HKCFI 6270
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2218 OF 2025
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BETWEEN
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Phomphakdy Me |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.
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 3 October 2025, 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 27 September 2024 (“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/2025/HCAL002218_2025_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 31 May 2024 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.
Amendment
3. The applicant named the Board and “Non-Refoulement Claims Petition Office” as the putative respondents in Form 86, when only the Board should be so named.
4. The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.
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 Laos, she feared harm from a loan shark from whom her previous boyfriend obtained a loan of 100,000 Thai baht. Her previous boyfriend gave her address to the loan shark instead of his own, and the loan shark chased her for repayment at her family home. Although she paid a total of 2.5 million Lao currency on three separate occasions, she could not pay the loan shark further. The loan shark threatened to harm her if she did not repay the debt. When her previous boyfriend learnt that she had left Laos, he threatened to harm her too.
Late application
8. By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.
9. However, the applicant filed Form 86 on 3 October 2025, which was more than 12 months after the Board’s Decision (made on 27 September 2024). The applicant was hence late for more than 9 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.
10. As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
(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.
11. The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application. At the oral hearing before this court on 11 December 2025, the applicant said that she could not recall when she received the Board’s Decision, but she had been detained in custody since July 2025. She did not know that she could apply for judicial review until another detainee told her so in July 2025.
12. The delay of more than 9 months is significant, and the explanation given by the applicant is not satisfactory. Ignorance of the law or the court’s procedures is not generally an excuse for delay. More importantly, there is no merits in the intended judicial review at all as discussed below.
13. Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.
14. However, for the sake of completeness, this court will still examine the merits of the Leave Application.
Oral hearing
15. The applicant’s case was heard on 11 December 2025. When this court asked the applicant for the grounds of her intended judicial review, the applicant merely said that she could not return to Thailand because she was chased by the illegal loan shark. Apart from that, the applicant only asked to be released from detention.
Grounds for judicial review
16. 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).
17. However, the applicant did not assert any ground for her intended judicial review in Form 86, nor in her supporting affidavit/affirmation dated 2 October 2025.
18. What the applicant said at the oral hearing before this court is not a valid ground for the intended judicial review at all.
Discussion
19. 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).
20. The applicant’s alleged problem about the loan shark had already been considered by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in a judicial review.
21. However, despite the lack of any valid ground being advanced by the applicant for the intended judicial review, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality.
22. In assessing the appeal by the applicant, the Board arranged an oral hearing on 23 August 2024 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.
23. As can be seen from paragraphs 27 to 34 of the Board’s Decision, the Board did give detailed reasons as to why it concluded that the applicant had failed to discharge even the light burden upon her and no credence could be attached to any of her claims. After detailed questioning of the applicant, the Board concluded that she was not a witness of truth.
24. Apart from accepting that the applicant was a national of Laos, the Board could make no positive findings of fact on any of the applicant’s claims. Thus, the Board concluded that the applicant was not at a real risk of any of the proscribed forms of harm under the USM.
25. The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to her claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.
26. 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 she 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 her home area (see Gardi v SSHD [2002] 1 WLR 2755).
27. As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.
28. The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
29. 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.
30. 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
31. For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.
Dated the 17th day of December 2025
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( Irene LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or the applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors on:
17 December 2025
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
17 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 23845
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1081/24
(Formerly RBCZ 5000975/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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