Peeraphaswasuthorn Porrama v. Torture Claims Appeal Board

HCAL 266/2024

[2025] HKCFI 5592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 266 OF 2024

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 47-year-old national of Thailand who arrived in Hong Kong on 5 March 2020 as a visitor with permission to remain as such as extended up to 30 October 2020 when he did not depart and instead overstayed, and on 27 January 2021 he surrendered to the Immigration Department and raised a non‑refoulement claim for protection on the basis that if he returned to Thailand he would be harmed or killed by his creditor over his outstanding debts and/or his nephew over some false rumours. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Bangkok, Thailand. After graduating from university he worked in the hotel industry, and in 2018 he set up his own business operating holiday homes for tourists in Pathum Thani with the help of a loan borrowed from a local money-lender repayable by monthly instalments with interests which he managed to make from his business income.

3.In March 2020 he together with his nephew and a friend travelled to Hong Kong for a visit, and while his nephew subsequently left and returned to Thailand, the Applicant who stayed behind longer was later unable to do so due to the closure of the airports in Thailand caused by the Covid-19 pandemic, which had also severely affected his holiday home business that it was eventually closed down in July 2020, and as a result the Applicant was unable to repay his debts, and for which his creditor started to threaten to kill him.

4.For some unknown reason his nephew upon returning to Thailand started to spread false rumours that the Applicant had raped his sister and swore to kill him in revenge upon his return to Thailand.

5.Due to these death threats from his creditor and his nephew, the Applicant was afraid to return to Thailand and therefore overstayed in Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non‑refoulement Claim Form (“NCF”) on 17 September 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 17 November 2021 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 his 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”).

7.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 his creditor or his nephew upon his return to Thailand as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, while the threats from his nephew appeared to be just some angry words and empty threats, that in any event these were private disputes between them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable 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 his home district in large cities such as Chiang Mai or Phuket where it would be difficult if not impossible for anyone to locate him.

8.On 30 November 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 31 March 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 August 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claims of fear of harm from any creditor or nephew that caused him to overstay in Hong Kong to seek protection, that even if his such claimed risks were real that there was no reliable evidence of any real intention of either of his creditor or nephew to seriously harm or kill him, and that in any event these were private and personal disputes between them without any official involvement that state or police protection would be available to the Applicant upon his return to Thailand as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

10.On 2 February 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just asserted that he has married in Hong Kong that he does not want to leave but without putting forth any proper ground for his intended challenge.

11.By then the Applicant was also out of time with his 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.

12.As the last day of the three-month period for him to file his Form 86 fell on 29 November 2023, the Applicant was therefore more than 2 months late with his 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.

13.In the Applicant’s case, a delay of more than 2 months must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 29 August 2023 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such substantial delay.

14.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

15.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.

16.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risks of harm in his claim even if real are localized ones and that it is not unreasonable or unsafe for him to relocate to other part of Thailand, there is simply no justification to afford him 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 October 2025 filed an affirmation requesting to “cancel” his application as he now wants to return to his home country.

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, and in view of his latest confirmation of his wish to return to his home country, I accordingly dismiss his leave application.

Dated the 19^th day of November 2025

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