SAENTHAWI RATSAMI alias SAENTHAWI NUANNIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 352/2023

[2025] HKCFI 5703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 352 OF 2023

Application for leave to apply for judicial review

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 23 May 2019”.

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 8 March 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions namely:-

(1)  “The Decision of the Director of Immigration dated 14 September 2018”; and

(2)  “The Decision of the Adjudicator dated 23 May 2019”.

2.  The Torture Claims Appeal Board (“the Board”) made a decision on 23 May 2019 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 14 September 2018 (“the Director’s Decision”). The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000352_2023_files/the_Board's_Decision.pdf

3.  At the oral hearing before this court on 21 October 2025, this court explained to the applicant that the Director’s Decision was superseded by the Board’s Decision (see Re Moshsin Ali [2018] HKCA 549). After the explanation, the applicant confirmed with this court that the Leave Application was in respect of the Board’s Decision only.

4.  Thus, it is no longer necessary for this court to deal with the Director’s Decision in the Leave Application.

5.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

6.  The applicant named both the Director and “The Adjudicator of the Non-refoulement Claims Petition office appointed to determine the Applicant’s Petition” as the putative respondents but did not name any putative interested party in Form 86.

7.  In fact, only the Board should be the putative respondent and the Director should be the putative interested party.

8.  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.

9.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

10.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 23 May 2019”.

Late application

11.  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.

12.  However, the applicant filed Form 86 on 8 March 2023, which was more than 3 years and 9 months after the Board’s Decision (made on 23 May 2019). The applicant was hence late for more than 3 and a half years in making the Leave Application.

13.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which 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.

14.  The applicant did not make any application for extension of time. In her supporting affirmation dated 8 March 2023, she stated that she did not receive the Board’s Decision and was thus unaware of any such decision. She also stated that it was only when she went to report to the Immigration Department recently, she was informed by the Immigration officer about the decision and therefore, she went to the Board herself to collect the said decision.

15.  At the oral hearing before this court on 21 October 2025, the applicant said she received the Board’s Decision about two years ago and she made the Leave Application at once, but she could not give any explanation for the delay.

16.  The delay of more than 3 and a half years is very substantial and the explanation provided by the applicant is unsatisfactory. The reason why she came to know about the determination of her appeal/petition by the Board only after more than 3 and a half years remained unexplained, as she must have reported to the Immigration Department for many times after the Board’s Decision was made. More importantly, there is no merits of the intended judicial review as discussed below.

17.  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.

18.  However, for the sake of completeness, this court will still examine the merits of the Leave Application.

The applicant’s case

19.  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.

20.  In sum, the applicant claimed for non-refoulement protection because if refouled to Thailand, she feared violence from a moneylender named Sak due to her inability to repay a loan of 400,000 Thai Baht co-borrowed with her brother from Sak in 2003 to open a restaurant. She claimed that Sak’s men had shot and killed her brother in 2004.

Oral hearing

21.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 21 October 2025.

22.  The applicant annexed a document with the title “Grounds on which Relief is sought” to her supporting affirmation dated 8 March 2023. When this court asked the applicant to elaborate on the grounds stated in the said document, the applicant merely said that she did not want to do so but would rely on the grounds stated therein.

Grounds for judicial review

23.  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).

24.  The contents of the document with the title “Grounds on which Relief is sought” were all very general. The document was in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

25.  First of all, some of the above grounds were directed at the Director. As mentioned, the Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review. The applicant also confirmed that only the Board’s Decision is the subject matter of the Leave Application. This court will therefore consider only those grounds directed at the Board in respect of the Board’s Decision.

26.  Paragraphs 2, 3 and 4 of the applicant’s grounds were directed at the Director. Hence, they could not be used to challenge the Board’s Decision and can be simply ignored. Thus, only paragraph 1 of the grounds is relevant to the Leave Application.

27.  In paragraph 1 of the grounds, the applicant alleged that the adjudicator of the Board reached the Board’s Decision wrongly and it was not reasonable and fair as required by the Wednesbury test. However, the applicant did not state how or why the Board’s Decision was wrong, unfair and unreasonable. It does not help the applicant to establish any ground by just mentioning the right to life in paragraph 1.

28.  As held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, none of these accusations could establish any valid ground to challenge the Board’s Decision when they are so vague and general without any requisite particulars related to the applicant’s case.

29.  In any event, the Board did assess the applicant’s risk of right to life. In view of the applicant’s inconsistent evidence, her lack of credibility and her own evidence that she was never attacked or harmed by Sak or his men, the Board did not accept the applicant’s claims that Sak or his men would seriously harm her and they were responsible for her brother’s death. The Board found that the applicant did not face a real risk that her right to life would be violated by Sak or his men or anyone else should she return to Thailand.

30.  The applicant further asserted in paragraph 1 of the grounds that the Board’s adjudicator failed to give her sufficient time and chance to arrange relevant evidence to her non-refoulement claim as well as her appeal.

31.  This complaint is simply untrue. The applicant first arrived in Hong Kong in 2004. She did not make a claim for non-refoulement and she was deported in 2005. She came to Hong Kong again in 2006 and was arrested in 2013. She first applied for non-refoulement protection in 2014 but provided no information about her claims until she lodged her non-refoulement claim form in August 2018. Her claim was rejected by the Director on 14 September 2018 and her appeal/petition to the Board was finally heard on 18 March 2019. This means that the applicant had more than one decade to prepare any relevant evidence that she would like to adduce to support her non-refoulement claim even after her second arrival in Hong Kong. Moreover, if she did have further evidence to produce, she could have applied to the Board for more time to adduce the evidence if she needed it.

32.  Thus, it is absolutely groundless for the applicant to complain that the Board’s adjudicator failed to give her sufficient time and chance to arrange relevant evidence to her non-refoulement claim as well as her appeal.

33.  In the circumstances, this court finds that the applicant has failed to establish any valid ground for challenging the Board’s Decision.

34.  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).

35.  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.

36.  As can be seen from the Board’s Decision, the Board had considered the applicant’s case carefully. The Board found that a lengthy time had elapsed since the events on which the applicant’s claims were founded, Sak or his men had never harmed the applicant and there were inconsistencies in her claims as to Sak’s political connections and the circumstances of her brother’s death. In view of those findings, the Board concluded that the applicant had not established any grounds for non-refoulement protection under the USM as the applicant would not be at a real risk of any harm upon refoulement.

37.  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.

38.  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).

39.  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.

40.  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.

41.  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.

42.  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

43.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for lack of merits.

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