Case Document

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HCAL 320/2023

[2026] HKCFI 5098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 320 of 2023

BETWEEN

	Condon Nattaya	Applicant
	and
	Torture Claims Appeal Board /	Putative
	Non-Refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Intersted 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;

Order by Deputy High Court Judge Andrew Li:

1.  Extension of time to file the Form 86 be refused;

2.  The Applicant’s Form 86 be amended to name the Director of Immigration as the putative interested party; and

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

Observations for the Applicant:

INTRODUCTION

1.By a Form 86 filed on 1 March 2023 (“the Form 86”), the applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (“the Board”) dated 3 November 2022 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 31 December 2021 in refusing the applicant’s non‑refoulement protection claim. She named the Board as the putative respondent and her boyfriend as the interested party.

2.I amended the Form 86 on my own motion to name the Director instead of her boyfriend as the putative interested party.

3.The applicant requested for a hearing and she attended the same.

BACKGROUND

4.The applicant is a national of Thailand. She seeks non-refoulement protection on the basis that if she is refouled, she would be harmed by her ex-boyfriend and her husband. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the Board’s Decision, which can be accessed through a hyperlink[1]. I shall not repeat the same here.

DISCUSSION

5.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the Board is required given the seriousness of the issue at hand, this court should not usurp the role of the Board, which together with the Director are the primary decision-makers. This 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 Board (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

6.The applicant has not specified any grounds on which relief is sought in the Form 86 and the affirmation filed in support of the leave application other than to say that she still worries about her life and that of her family in Thailand. She feels that she is still in danger.

7.It has been held that in a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142]. He/she is also required to make full and frank disclosure of all material facts to be verified by an affidavit.

8.Besides the very general grounds stated above, the applicant has failed to provide any particulars as to what are the matters which the Board has allegedly failed to consider and which part of the Board’s Decision contained inadequate reason(s).

9.At the hearing, the application mentioned that she gave birth to a daughter in 2024 in Hong Kong and asked the court to take this into consideration. This happened after the Board’s Decision was made in November 2022 and after she had filed the present application in March 2023. She also confirmed that the daughter was not subject of her present non-refoulement claim. Upon checking the court’s record, no separate application has been made on behalf of her daughter. In the circumstances, this matter does not form part of the present application for leave for judicial review.

10.In addition, I noticed that the Board’s Decision was dated 3 November 2022 while the Form 86 was filed almost 4 months later on 1 March 2023 only. Under Order 53, rule 4(1) of the Rules of the High Court (Cap 4A), an application for leave to apply for judicial review should be made promptly and in any event within three months from the date when grounds for the application first arose. The only explanation given by the applicant in the Form 86 is that someone had hacked her phone. At the hearing, she gave the further explanation that she was pregnant at the time and she was not familiar with the legal process in Hong Kong. I do not accept any of those are good explanations for the delay in filing the application. In any event, there was no application to ask for an extension of time. In the circumstances, the court would refuse any extension of time to file the leave application.

11.Looking at the Board’s Decision, the Board bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [17-30].

12.The Board has carefully taken into consideration of the applicant’s case and evidence [3-15, 31], including the relevant COI [32-35], state protection [50-51] and the option of internal relocation [52-54].

13.After thoroughly analysing and assessing the above, the Board came to the findings and conclusions that none of the grounds was made out [55].

14.Having looked at the Board’s Decision carefully, I am not able to find the Board has failed to consider any of the matters raised by the applicant in her claim and/or failed to provide any adequate reason in its decision.

15.Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge for judicial review is not reasonably arguable and bears no realistic chance of success.

CONCLUSION

16.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 18^th day of September 2026

(Cheung Ho Yat, Annson)
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 18/9/2026 Condon Nattaya 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 18/9/2026 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 19768 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1626/21 (formerly RBCZ 10677/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)