Nontathen Charanrat v. Torture Claims Appeal Board

HCAL 1495/2023

[2026] HKCFI 3532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1495 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the applicant’s name be amended to “Nontathen Charanrat”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 23 August 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 August 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001495_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 18 July 2022 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

3.The applicant wrongly spelt her own name, named the Board and Non-refoulement Claims Petition Office as the putative respondents and did not name any putative interested party in Form 86.

4.In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a respondent at all.

6.This court therefore makes an order on its own motion to amend the applicant’s name to “Nontathen Charanrat”, the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

The applicant’s case

7.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

8.In sum, the applicant claimed for non-refoulement protection because if refouled to Thailand, she feared being harmed or even killed by her creditor due to her inability to repay an outstanding loan.

Disposal on paper

9.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

10.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 23 August 2023.

Discussion

12.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 20 June 2023. The applicant was present and was thus given the chance to present her case to the Board in person.

15.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims.

16.The Board laid out its full consideration of the applicant’s case in paragraphs 54 to 60 of the Board’s Decision, and it is not necessary for this court to repeat the same here.

17.In gist, the Board found that despite the low standard required to establish her non-refoulement claim, the applicant’s evidence was full of implausibilities. The Board did not accept the factual account of the applicant’s claim, including the existence of the loan, and the claimed event of being chased for repayment and being threatened by the creditor.

18.Moreover, even assuming that the applicant’s claim was accepted in full, the Board found that the chance that the applicant would be harmed by the creditor was low. Even on the applicant’s evidence, both she and her mother had never been harmed by the creditor or his henchmen. The Board considered that the sufferings the applicant encountered as a result of the non-payment of the loan did not attain the minimum level of severity required for international protection. The applicant’s fear for the creditor only arose from her inability to repay a loan, which was private in nature. The evidence was that the creditor was a non-state actor and no state acquiescence was involved in the ill-treatment of the applicant. Her fear for the creditor was not for a Convention reason.

19.Moreover, as can be seen from paragraphs 65 to 73 of the Board’s Decision, the Board had considered extensive, fully-referenced country of origin information (“COI”) and found that despite setbacks, the Thai government had taken measures to combat corruption and crack down illegal loan shark activities. The Board found no evidence that the applicant would be denied state protection.

20.More importantly, the Board was of the view that it would be reasonable and not unduly harsh for the applicant to relocate to another place in Thailand to avoid any perceived risk from the creditor. The Board was satisfied that the applicant could reasonably relocate to other parts of Thailand, and it would be very difficult for the creditor to seek her out (see paragraphs 74 and 75 of the Board’s Decision).

21.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

22.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

23.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

24.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.For reasons aforesaid, the Leave Application is dismissed.

Dated the 17^th day of June 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