NUAMMAI MANOP v. TORTURE CLAIMS APPEAL BOARD

HCAL 380/2022

[2026] HKCFI 2636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 380 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 the name of the putative interested party be amended to “Director of Immigration”.

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 24 May 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 16 July 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/HCAL000380_2022_files/the_Board's_Decision.pdf

2.  The Board found that the applicant had failed to establish his claim for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Accordingly, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 February 2021 (“the Director’s Decision”) and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named himself as the putative respondent, and the Board / Non-refoulement Claims Petition Office and the Director as the putative interested parties.

4.  In fact, 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 party 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 the name of the putative interested party to “Director of Immigration”.

Late application

7.  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.

8.  However, the applicant filed his Form 86 on 24 May 2022, which was more than 10 months after the Board’s Decision (made on 16 July 2021).  The applicant was hence late for more than 7 months in making the Leave Application.

9.  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.

10.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. 

11.  A delay of more than 7 months is very substantial, and there is simply no reason for this court to grant an extension of time for the applicant to file the Leave Application when no explanation was given.  More importantly, there is no merits in the Leave Application at all as discussed below.

12.  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.

13.  However, for the sake of completeness, this court will consider the merits of the Leave Application as discussed below.

The applicant’s case

14.  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.

15.  In sum, the applicant claimed for non-refoulement protection because if refouled to Thailand, he would be gravely harmed or even be killed by some privileged young men (“The Young Men”) who were the sons of police officers or politicians.

Disposal on paper

16.  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.  Thus, the Leave Application is dealt with on paper.

Grounds for judicial review

17.  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).

18.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 24 May 2022. 

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.  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.

21.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 31 May 2021 and the applicant was present.  The applicant was thus given the chance to present his case to the Board in person. 

22.  As can be seen from the Board’s Decision, the Board found that the applicant’s case was vague and unbelievable in both his oral evidence and his written case. The Board only accepted the applicant’s personal and family background, his education and working history as true, and that he might have been working as a security guard as claimed, during the course of which he might have encountered some quarrels or disputes between different groups of people.

23.  The Board found the applicant’s story that he was injured was not convincing, and even assuming that he might have been injured as alleged, the applicant’s claim that The Young Men were sons of police officers and politicians was vague, flimsy and unsubstantiated.  Significantly, the applicant admitted that he had not been threatened at all.  All the other matters, including the applicant’s stated fear of harm and that The Young Men could locate him anywhere in Thailand were not accepted.

24.  Nevertheless, despite its findings, the Board went on to assess the applicant’s claim on the assumption that his story was true to the extent that he had and still has in his mind the alleged risk of harm.  However, the Board found that the applicant still could not substantiate a case for non-refoulement protection.

25.  The Board found that the applicant’s dispute with The Young Men was only a private matter and was localized.  There was no evidence of state acquiescence.  The applicant’s fear of The Young Men was not for any Convention reasons.  The injuries that the applicant sustained was not serious and did not attain a minimum level of severity.

26.  Further, the Board was of the view that the applicant had not fully availed himself of the protection from the police.  He could have insisted the police to follow up or lodged complaints to other public authorities in his country.  The Board did not accept that the applicant would not be accorded appropriate protection if there was a genuine need for him to seek protection after he returned to Thailand.

27.  Lastly, the Board found that there was no evidence that the Young Men were so powerful as claimed so that they could locate the applicant anywhere in Thailand.  The Board explicitly stated that if it were necessary for the applicant to get out of the place where he used to live and to keep away from The Young Men, the applicant, being in his 30’s with education and work experience, could relocate to other places in Thailand as suggested by the Director in the Director’s Decision.

28.  Thus, the Board found that the applicant was not at a real risk of being tortured, ill-treated, persecuted or arbitrarily deprived of his life upon refoulement.  The Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

29.  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.

30.  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. 

31.  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

32.  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