Phobphakpanya Prasertsan Alias Songcharoen Prasert v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1098/2020

[2026] HKCFI 84

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1098 of 2020

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 the Applicant being absentin open court;

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

1.  The Form 86 is amended on the Court’s own motion, naming only the “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office” as the Putative Respondent, substituting “The decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 18 May 2020” in place of the words “28 December 2018”, and naming only the Director of Immigration as the Putative Interested Party; and

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

Observations for the Applicant:

Introduction

1.The Applicant is a national of Thailand. By a Form 86 filed on 4 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 4 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision said in the Form 86 to have been made on “28 December 2018”, but mentioned in his Affirmation as being “(USM) 15264/19/1/137/TH 51”.

2.The Affirmation exhibited inter alia a decision of the Director of Immigration (“Director”) dated 28 December 2018 (“Director’s Decision”), and a decision that related to his appeal/petition to the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made by the TCAB/NRCPO on 18 May 2020 with Reference Number USM 15264/19/1/137/TH 51 (“the TCAB Decision”)[1].

3.The Applicant sought an oral hearing of his application and one was scheduled on 27 August 2025. He was successfully contacted over the telephone by court staff on 21 August 2025 and informed of the date, time, and place of the hearing, but did not attend it as scheduled. I hence consider that the Applicant had been informed of the hearing of his application and chose not to attend such, even though the Notice of Hearing issued by post on 7 August 2025[2] was returned to the High Court on 29 August 2025 (shortly after the date of the scheduled hearing) with the indication “Incomplete Address”. Moreover, and in any event, by giving an apparently incomplete address, the Applicant has failed to discharge his duty to give the court an address to which correspondence or notice can come to his attention in a timely manner (Islam Raja Rais v. Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; Re Saqlain Muhammad [2018] HKCA 346; Hasmi Rizwan Imran [2018] HKCA 439). I have hence dealt with his application on the papers.

4.In the Form 86 the Applicant named himself as the Putative Respondent. Given his appeal/petition to the TCAB/NRCPO, the Director’s Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18). In light of such, and given that the reference set out in the Affirmation is that of the TCAB Decision, I have amended the Form 86 of my own motion to reflect that the TCAB Decision is the decision in respect of which leave is sought, and to reflect the identities of the proper Putative Respondent and Putative Interested Party. I will also use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

Background

5.This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Thailand, he would be harmed or killed by his previous business partners and the Thai authorities;

(2)  The claim was assessed on the grounds of Torture Risk[3], BOR 3 Risk[4], BOR 2 Risk[5], and Persecution Risk[6] and was rejected by the Director in the Director’s Decision, against which the Applicant filed a Notice of Appeal/Petition;

(3)  The TCAB/NRCPO held a hearing in relation to the Applicant’s non‑refoulement claim on 26 and 28 August 2019; and

(4)  The TCAB/NRCPO issued the TCAB Decision on 18 May 2020, in which it found that the Applicant’s claims for non-refoulement protection had not been made out on any of the applicable grounds and confirmed the Director’s Decision.

Legal Principles

6.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.Both the Form 86 and the Affirmation do not identify any grounds of judicial review and do not allege any procedural unfairness in relation to, any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. The Affirmation had exhibited to it inter alia a handwritten document in English said to be a “PETITION FOR NOT RETURNING TO THAILAND”, and a similar document in Thai (as to which I have had the assistance of a certified translation) titled “An Appeal for Non-Refoulement to Thailand” (“the Handwritten Documents”). Both refer to a copy of analleged arrest warrant in Thai (as to which I have also had the assistance of a certified translation) (“the Alleged Warrant”) which is apparently dated 17 January 2017. The Handwritten Documents repeat certain allegations made by the Applicant in support of his non-refoulement claim as had been advanced to the Director and to the TCAB/NRCPO, both refer to the Alleged Warrant as attached to what is said to be the “appeal file”[7], and say that the Applicant therefore wants to “ask the person who has the power to help or the agency the help with the matter, to stay or to seek asylum in Hong Kong and receive the document asking for the appeal again”[8].

10.However, such claims do not contain or amount to any ground of judicial review, which as explained in the authorities that I have referred to above is not a further avenue of appeal. There is hence no allegation made of any procedural unfairness in relation to, of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

11.Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness, and both Grounds.

12.The TCAB/NRCPO set out the Applicant’s background, immigration and procedural history, the four grounds under the USM including relevant principles in relation thereto, and that it had considered the documents, claims, and evidence before it (Paragraphs 1 to 30). This was followed by the details of the Applicant’s case as apparent from such, including those set out in the NCF, the Interview, the Director’s Decision, and on appeal including at the 2-day hearing before the decision maker (Paragraphs 31 to 132[9]).

13.The decision-maker then discussed the claim before him. He had regard to relevant principles, evidence, and COI, and explained that (and gave salient reasons why) he had significant concerns as to the credibility of core aspects of the Applicant’s account. While he hence accepted portions of the facts claimed by the Applicant, he ultimately on the evidence and for reasons given did not accept the Applicant’s core claims that the Applicant was, by or at the behest of Richard and his associates, directed to approach the Thai authorities and assume overall responsibility for a criminal car importation racket, or that the Applicant was targeted, threatened, attacked, kidnapped, beaten, or tortured as a consequence of his refusal to do so (Paragraphs 133 to 155). Consequently, the TCAB/NRCPO was not satisfied that the Applicant faced any serious or significant risk of harm on return to Thailand as claimed. It was prepared to accept that the Applicant might face criminal prosecution if returned, but found that it was not for a Refugee Convention reason and rather that it would merely reflect the appropriate and proportionate application of non-discriminatory laws for legitimate law-enforcement purposes. On the facts and the COI it also did not accept that the Applicant faced more than a remote possibility of suffering any serious or significant harm if he were detained by the authorities, including as a convicted prisoner (Paragraphs 156 to 158).

14.Accordingly, on the facts the TCAB/NRCPO found that it was not satisfied that any of the four types of risk had been established, also found that the Applicant’s claims for non-refoulment protection were not made out, and confirmed the Director’s Decision (Paragraphs 159 to 163).

15.I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding the evidence, credibility, and risk of harm, which are matters primarily within the province of the decision-making body. Nor is there any public law basis to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

16.Given the approach taken and findings in the TCAB Decision, I do not see how the claims made in the Handwritten Documents, and/or the Alleged Warrant assist or are relevant to the leave application. Not only is judicial review not (as I have already mentioned) a further avenue of appeal, but I do not see that the Alleged Warrant is admissible or in any event relevant, having had regard to the criteria in R v Secretary of State for the Environment, ex p Powis [1981] 1 WLR 574 (CA) and Nguyen Ho & ors. v Director of Immigration & anor. [1991] 1 HKLR 576.

17.There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

18.In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review be dismissed.

Dated the 28^th day of January 2026

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