DEANGCHOWNA SUWANNASA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1710/2023

[2025] HKCFI 3909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1710 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

1.  Application to withdraw the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.  Application for leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 25 September 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dismissing her appeal against the decision of the Director of Immigration refusing her application for non-refoulement protection (the “Decision”).

Discussion and conclusion

2.  On 22 July 2025, the Applicant applied by affirmation to withdraw her leave application (the “withdrawal application”).  To ensure that the withdrawal is valid and properly made, the Applicant was given directions by letter dated 11 August 2025 (the “directions letter”) to file an affirmation or a statement confirming:

(a)  that her withdrawal application is made out of her own free will;

(b)  that she will be safe to return to her home country; and

(c)  that she understands that if her withdrawal application is approved, the Decision of the Board dismissing her appeal against the decision of the Director of Immigration refusing her application for non-refoulement protection remains in force.

She was also advised that if no affirmation or statement shall have been filed as required, her withdrawal application will be refused and the leave application may be dismissed for want of prosecution unless she informs the Court of her intention to proceed with the leave application within 14 days of the directions letter.

3.  On 11 August 2025, the Immigration Department forwarded a note in standard form from the Applicant written in Thai dated 15 July 2025 with English translation requesting to withdraw all her cases in Hong Kong as she wanted to return to her home country as soon as possible.  Since the note pre-dated her affirmation, it was not written in response to the Court’s directions issued on 11 August 2025.  

4.  More than fourteen days have lapsed since the date of the directions.  As at the date of this Form CALL-1, the Applicant has not complied with the directions in the directions letter.  In the light of the Court’s directions, the Applicant must understand that if she does not respond, her withdrawal application may be refused and her leave application may be determined or dismissed for want of prosecution.  Her repeated withdrawal applications also evince a lack of intention to prosecute her leave application.  On the other hand, her repeated applications to withdraw without complying with the directions suggest there is a possibility that she did not understand the directions because of inaccessibility of language assistance. Out of caution, the Court consider the high standard of fairness requires it to consider the merits of her leave application.

5.  Having considered the nature and grounds of the application, the issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.  In gist, the Applicant claimed that she would be harmed or killed by her boyfriend if she was returned to Thailand because she had confronted him about his affairs with another woman.

The Board’s finding

6.  The Board assessed the Applicant’s claim on the basis of the case as she asserted.  It found her claim was a case of domestic violence, which she had tolerated for years and without suffering any serious harm.  The harm or ill-treatment she suffered did not fall within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance and had nothing to do with any of the reasons protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol and that she can avoid the harm by internal relocation.  On the basis of these findings, it found the Applicant was not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”) and dismissed her appeal against the Director’s decision in the Notice of Decision refusing her claim for non-refoulement protection.

The grounds of application

7.  The Applicant did not advance any ground of application in her Form 86 or supporting affirmation.  In her supporting affirmation, she repeated the gist of her case and asked the Court to rehear her case.  In effect, she is seeking to challenge the Board’s finding of fact which is impermissible in an application for judicial review.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision. 

Overall scrutiny of the Board’s Decision

8.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board conducted a rehearing.  It assessed the Applicant’s claim on the basis of the case as she had asserted.  It also found on the basis of authoritative and credible country of origin information that she could avoid the harm from her boyfriend by internal relocation.  It gave reasons for its finding.  The finding is a finding of fact solely within the realm of the Board, which the court in a judicial review may not interfere.  Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board came to the conclusion that the Applicant was not entitled to protection under any of the applicable grounds under the USM. 

9.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

10.  For the above reasons, the Applicant’s application to withdraw her leave application and her application for leave to apply for judicial review are refused.

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