Case Document

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HCAL 753/2025

[2025] HKCFI 2969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 753 OF 2025

BETWEEN
	Panadda Namlee	Applicant
	and
	Torture Claims Appeal Board	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 the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1. Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 11 December 2024 be refused; and

2. The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Thailand who arrived in Hong Kong on 17 April 2018 as a visitor with permission to remain as such up to 17 May 2018 when she did not depart and instead overstayed, and was arrested by police more than 2 years later on 4 December 2020. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Thailand she would be harmed or killed by her contractor in revenge for stabbing him during their monetary dispute and/or arrested or prosecuted by the Thai police for the stabbing incident.

2.The Applicant was born and raised in Udon Thani, Thailand. After leaving school she worked in various jobs as a farmer, a tailor, a restaurant receptionist and finally a construction worker to make her living in her home district.

3.In 2016 she together with her fellow workers were employed by a local developer named Chanon for some construction project, but upon the completion of the project in April 2018, Chanon put up all sorts of excuses to delay paying the Applicant and her fellow workers for their wages, and on one occasion when the Applicant pressed Chanon for payment that Chanon lost his temper and pushed the Applicant violently onto the ground that the Applicant in self-defense stabbed him in the stomach with a knife, whereupon she panicked and fled from the scene.

4.As she was fearful that Chanon would take revenge to harm or kill her or to report the stabbing to the police, the Applicant on that night fled to Bangkok, and on 17 April 2018 she departed Thailand for Hong Kong where she subsequently overstayed, and upon her arrest by the police in 2020 she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 August 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 8 October 2024 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Chanon upon her return to Thailand as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Chanon to seriously harm or kill her, that in any event it was a private monetary dispute between her and Chanon only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that relevant and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Thailand with a large population of 69 million people spread across a vast territory of more than 510,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Bangkok where it would be difficult if not impossible for Chanon to locate her, and as regard her claimed fear of being arrested or charged by the Thai police for stabbing Chanon, she would be regarded as a fugitive of the law and not be entitled to non-refoulement protection in Hong Kong, while COI also show that the laws in Thailand would ensure that she would be entitled to defend such charge as self-defense in a fair and public trial in a court of law with proper legal representation that her such claimed fear is not justified or accepted.

7.On 21 October 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 29 November 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 December 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from Chanon to take revenge against her for stabbing him in their fight over their monetary dispute, but found that it was a private monetary dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Thailand as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by Chanon or his men that her claim for non-refoulement protection failed on all applicable grounds, and as for her claimed fear of being arrested or prosecuted by the Thai police for the stabbing incident, she would be regarded as a fugitive of the law and not entitled to non-refoulement protection, that there is nothing to suggest that she would not be treated fairly by the Thai police or that she would be denied any fair trial before the court in Thailand as relevant COI show that the constitution of Thailand provides for the right to a fair and public trial, and if convicted of assault that the maximum punishment of imprisonment would not be lengthy or excessive, while the Applicant may also take civil action against Chanon for the wages owed to her under the Thai law.

9.On 25 March 2025 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she just repeated her claimed fear as before but without putting forth any proper ground for her intended challenge.

10.By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.As the last day of the three-month period for her to file her Form 86 fell on 11 March 2025, the Applicant was therefore some 2 weeks late with her application, and in considering whether to extend time, the Court shall have regard to (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: AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of 2 weeks may not be regarded as very substantial or inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 11 December 2024 to her then detention at Castle Peak Bay Immigration Centre (“CIC”) without being returned through undelivered post and where slight delays with incoming and outgoing mails are inevitable which may account for her relatively insubstantial delays, I propose to instead focus on the prospect of success or merits in her intended application.

13.However, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge either in her Form or affirmation. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.In the Applicant’s case, the Board rejected her claim for the detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim from Chanon if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Thailand, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.Moreover, the Applicant recently on 2 May 2025 in writing requested to withdraw her application as she now wants to return to her home country but without any explanation or clarification as to what may have happened to her claimed risks in Thailand.

19.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to extend time and accordingly dismiss her leave application.

Dated the 29^th day of July 2025

(Chung Lai Fan, Christine)
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 29 July 2025 Panadda Namlee 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 29 July 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 24784 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2070/24 (formerly RBCZ/5001709/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)