Case Document

100%Judiciary

HCAL 3118/2019

[2025] HKCFI 2620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3118 of 2019

BETWEEN
	Wanthongtak Sompong	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The applicant applies for leave to apply for judicial review of the Decision dated 11 April 2017 of the Director of Immigration (“the Director’s Decision”). His application must be dismissed for the reasons below:

(1)   He had appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalters JA, 24 August 2018, held:

“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

(2)   The Board acknowledged the applicant’s letter received on 25 October 2017, in which he applied to the Board to withdraw his appeal. See the Board’s letter dated 31 October 2017.

(3)   By the Board’s letter dated 17 November 2017, the Board confirmed that the applicant’s appeal had been withdrawn, and no further action will be taken by the Board in respect of his appeal.

(4)   The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, Hon Yuen JA and Lisa Wong J, 13 June 2019, the Court of Appeal held:

“41 …. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … …s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals. …

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder…. ”

2.According to the Director’s Decision, the applicant’s claim is based upon that, if refouled, he will be harmed or killed by the Yellow Shirts, the police or the government in Thailand. Having considered the evidence, the Director found that his claim failed because there had not been any harm or threat from his enemies, he had not sought protection shortly after he arrived in Hong Kong, and he had never sought protection from police or other authorities in Thailand for the reason that they did not assist him. Therefore, the Director concluded that there was no merit in his claim.

3.The applicant has raised no valid reason to challenge the Director’s Decision.

4.For the reasons above, I dismiss the applicant’s application.

Dated the 15^th day of July 2025

(M.O. WONG)(Ms)
for Registrar, High Court

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:
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)).		Sent to the Applicant on 15/7/2025 Wanthongtak Sompong Applicant’s ref. no: Nil		Sent 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 xx/7/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6937/17/4/213/TH20 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 288/17 (Formerly RBCZ 14424/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)