CHANCHAI PHIPHAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 756/2024

[2026] HKCFI 4883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 756 OF 2024

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 or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

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 13 May 2024, 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 6 July 2023 (“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/2024/HCAL000756_2024_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s application for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 27 January 2023, which rejected the applicant’s non-refoulement claim.

Amendments

3.  In Form 86, the applicant named the Board and “THE DIRECTOR OF IMMIGRATION DEPARTMENT” as the putative respondents, and did not name any putative interested party.

4.  In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

Late application

6.  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.

7.  However, the applicant filed Form 86 on 13 May 2024, which was more than 10 months after the Board’s Decision (made on 6 July 2023). The applicant was hence late for more than 7 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.

8.  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.

9.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.

10.  A delay of more than 7 months is substantial, there is simply no reason for this court to extend the time for the applicant to make the Leave Application when no explanation was given for the delay at all. More importantly, there is no merit in the Leave Application whatsoever as discussed below.

11.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will still deal with the Leave Application.

The applicant’s case

13.  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.

14.  In sum, the applicant claimed for non-refoulement protection because if refouled to Thailand, he feared that he would be seriously harmed or even killed by his creditor Mr T, as the applicant had not repaid the loan borrowed from Mr T.

Disposal on paper

15.  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. Hence, the Leave Application is dealt with on paper.

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.  The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affidavit/affirmation dated 13 May 2024. He merely stated in the said affirmation that he did not agree with the Board’s Decision.

Discussion

18.  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).

19.  Thus, despite the fact that the applicant failed to advance any 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.

20.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 28 June 2023. The applicant was present and was thus given the chance to present his case to the Board in person.

21.  As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its assessment on the applicant’s case and his credibility were laid out in paragraphs 52 to 57 of the Board’s Decision, and it is not necessary to repeat the same here.

22.  In gist, the Board accepted the factual basis of the applicant’s claims. However, even on the applicant’s evidence, the applicant was never assaulted by Mr T. The applicant conceded at the Board’s hearing that Mr T had never threatened him with any specific form of action. The applicant even admitted that Mr T only threatened him that he would take action, but not to the point that he would kill the applicant.

23.  On the totality of evidence, the Board was not persuaded, even to the low standard applicable, that there was a real risk that the applicant would suffer serious harm, even death, at the hands of Mr T as the applicant claimed, or at all, if the applicant was refouled to Thailand.

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

25.  The Board did not consider availability of state protection and viability of internal relocation. However, as the Board found that the applicant did not face a real risk of torture, ill-treatment, arbitrary deprivation of life or persecution from Mr T at all, 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 he 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 his 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 whatsoever, it is not necessary for the Board to further consider internal relocation.

28.  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.

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.

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