Seslert Nongyao v. Torture Claims Appeal Board

HCAL 603/2024

[2026] HKCFI 2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 603 OF 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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 62-year-old national of Thailand who last arrived in Hong Kong on 1 September 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract on 1 September 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 31 January 2019, she did not depart and instead overstayed, and was arrested by police more than 1 ½ years later on 25 September 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 certain government departments and organizations because she had filed a lawsuit against them for compensations for her son’s death in a traffic accident.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in a village in Nongmek Sub-district, Nonghan District, Udon Thani Province, Thailand.  After graduating from a university she worked as a teacher in her home district, married her husband and raised a family with 3 children in her home village.

3.After her marriage ended in a divorce, and in order to support her children the Applicant in 1992 came to Hong Kong to work as a foreign domestic helper, during which she met and formed a relationship with a Hong Kong resident, and to whom she subsequent married in 1996 and whereupon she was allowed to stay in Hong Kong on a dependent visa renewable annually.

4.However, after her husband passed away in 2006, her dependent visa was not renewed and so the Applicant returned to her home town in Thailand to live with her children.

5.In 2013 her son was killed in a traffic accident in Udon Thani after he drove his motorbike into an unpaved road without any warning sign and fell into a stream and drowned, for which the Applicant filed a lawsuit in the provincial court of Udon Thani against various local organizations for their negligence of duty towards that unpaved road that caused her son’s death and for compensations, but thereafter what she considered as strange and life threatening events started to occur which she suspected were instigated by those local organizations named in her law suit, starting with the unexplained disappearance of her son’s motorbike from her home.

6.Then in September 2013 on the day before the requisite conciliation hearing of her lawsuit, while the Applicant was walking along the road near her home, a van travelling at high speed crossed onto the pavement and nearly knocked her down but she managed to jump out of the way but fell onto the road side and injured her right leg, of which she suspected was an attempt by those involved in the lawsuit to kill her.

7.About one month later in October 2013 one night while the Applicant was driving her car in her home district, another vehicle on the opposite lane suddenly swirled across the road at high speed directly at her but she managed to drive away to avoid being hit, of which she suspected was another attempt to kill her by those involved in her lawsuit.

8.On another occasion in September 2015 while she was walking on the road back to her home, a grey car drove at high speed crossed onto the pavement and almost struck her but she managed to avoid it by throwing herself onto the other side of the pavement, but as she hit the ground hard that she suffered severe injuries and was subsequently taken to the hospital for medical treatment, and of which she suspected was another attempt to kill her by those organizations involved in her lawsuit.

9.Eventually the Provincial Court of Udon Thani gave a judgment in her favour by ordering the relevant organizations to pay 130,000 Thai Baht to the Applicant as compensation, but of which those organizations failed to pay and instead brought appeals to the High Court in Bangkok.              

10.As a result, and as she feared that those organizations would continue their attempts to kill her, the Applicant felt it was no longer safe to remain in Thailand, and so on 1 September 2018 she departed Thailand to come to Hong Kong to again work as a foreign domestic helper, but when her employment was prematurely terminated on 31 January 2019, she was afraid to return to Thailand and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non‑refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 June 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

11.By a Notice of Decision dated 28 June 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 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”).

12.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by those local organizations upon her return to Thailand due to the absence of any proven past ill-treatments from any of them, that there is no evidence of any of those alleged incidents did occur or that they were attempts by those organizations to harm or kill her other than her own unfounded imaginations and speculations, that those local organizations did lawfully participate in their defense of her lawsuit and were in the process of appealing to the higher court in Bangkok that there is no evidence or reasons for them to instigate such illegal attempts against the Applicant other than her own imaginations, that in any event it was a private legal dispute between her and those local organizations 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 513,000 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 or Chiang Mai where it would be difficult if not impossible for anyone to locate her.

13.On 9 July 2021 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 3 October 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 2 November 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

14.In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from those organizations over her lawsuit that caused her to overstay in Hong Kong to seek protection, that even if those alleged traffic incidents prior to her departure of Thailand were true there was no reliable evidence that they were caused by those organizations to attempt to kill her over her lawsuit which they had participated in the legal process that there is no plausible reason for them to be involved in any illegal or criminal attempts to silence the Applicant other than her own groundless imaginations, and that in any event it was a private legal dispute between her and those organizations only without any official involvement that state or police protection would be available to the Applicant upon her return to Thailand if needed 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 anyone that her claim for non-refoulement protection failed on all applicable grounds.    

15.On 16 April 2024 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 stated that she does not agree with the decision but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.     

16.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.

17.As the last day of the three-month period for the Applicant to file her Form 86 fell on 2 February 2024, the Applicant was therefore some 2 ½ months 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.

18.In the Applicant’s case, a delay of 2 ½ months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision as sent on the same day of 2 November 2023 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.      

19.As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, 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.

20.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.

21.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and 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 finding of the Board.

22.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 even 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.                

23.In the premises, and 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.

24.Moreover, the Applicant has recently in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to Thailand as soon as possible.

25.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 her latest confirmation of no more issue for her to return to her home country, I accordingly dismiss her leave application.

Dated the 5^th day of May 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