Ounjai Ratpatsorn v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 379/2023

[2026] HKCFI 5109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 379 of 2023

BETWEEN

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 only the Torture Claims Appeal Board as the putative respondent and 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 13 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 22 March 2019 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 30 April 2018 in refusing the applicant’s non‑refoulement protection claim. She named the Board and the Director as the proposed respondents but neither of them was listed as interested parties.

2.I amended the Form 86 on my own motion to name only the Board as the putative respondent and the Director as the putative interested party.

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

4.I noticed that the Board’s Decision was dated 22 March 2019 while the Form 86 was filed almost 4 years later on 13 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. There was no explanation for the serious delay in filing the application nor was there any application to ask for an extension of time under the Form 86 or in the affirmation filed in support of the application.

5.At the hearing, when asked for the explanation for the serious delay in her application, the applicant mentioned that she was pregnant at the time and the child was born with a congenital heart condition. Further, she said she was not familiar with the legal process.

6.I do not accept any of the above as good reasons for her serious delay in making the application. In the circumstances, the court would refuse any extension of time to file the leave application.

BACKGROUND

7.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 former lover. 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 herein.

DISCUSSION

8.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).

9.In the Form 86 and her affirmation filed in support of the application, the applicant has specified the following grounds: -

(1)  The decisions of the Director and the Board were not reasonable or fair according to the Wednesbury test and that the Board “failed to give him (sic) sufficient time and chance to arrange relevant evidence to his (sic) non-refoulement claim as well as his (sic) appeal.” [1];

(2)  The Director has “failed to appreciate or give the proper importance or weightage to the presence of state Acquiescence” in the applicant’s case in her decision [2];

(3)  The Director has failed to “take such argument into account or … has failed to give enough weight to such argument before reaching the Decision.”… “that although the Director had listed relevant COI which support the Applicant’s aversions that the police in his (sic) country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise.” [3];

(4)  The director shown an “unfair attitude” towards the applicant and “failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward” by the applicant [4];

10.In so far as the above purported grounds of review were made against the Director (including Ground [1], [2], [3] and [4] above), it has been held that the Director’s decision is not susceptible to judicial review once an appeal to the Board had been pursued: See Re Raschpal Singh [2020] HKCA 978, per Lam VP (as he then was) at §§40-41. As all the above grounds (expect part of Ground [1]) were made against the Director and not the Board, strictly speaking there is no need for me to consider them. Nonetheless, I would still look at the Board’s Decision carefully to see if any arguable grounds for judicial review may exist.

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 [51-71].

12.It took into consideration the applicant’s case [2-19] and evidence [20-40], including the relevant COI.

13.After thoroughly analysing and assessing the above [41-49], the Board came to the findings and conclusions that none of the grounds was made out.

14.Having looked at the Board’s Decision carefully, I do not find there was anything unreasonable in the Wednesbury sense.

15.As the allegation of failing to appreciate or failed to give sufficient or proper weight to the presence of the state’s “acquiescence” was made against the Director only, it cannot be made a subject of judicial review as the Director’s decision is not susceptible to judicial review as explained above. Even if it was made against the Board, it clearly would not stand.

16.Further, I do not find the Board has failed to consider or give enough weightage on the COI and failed to take into account of the applicant’s personal background and experience. To the contrary, I find the Board has taken into account fully of the applicant’s personal background and experience and has meticulously set out and analysed the evidence produced by the applicant, including the oral evidence she gave at the hearing.

17.Lastly, I do not find the Board has adopted any improper or unfair procedures when assessing the explanations provided by the applicant.

18.Despite rigorous examination and anxious scrutiny, I could not find any errors of law, procedural unfairness or irrationality in the Board’s Decision. In my view, the applicant’s intended challenge against the Board’s Decision is not reasonably arguable and has no realistic prospect of success.

CONCLUSION

19.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

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