Adisak Kearsing Alias Krueasing Adisak v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 612/2023

[2026] HKCFI 5248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 612 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 25 April 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 19 April 2021 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 16 January 2020 in refusing the applicant’s non‑refoulement protection claim. He 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 he attended the same. However, when asked by the court if he has anything to say besides what have been mentioned in his application, the applicant only said that he is still in danger if he returns to his country.

4.I noticed that the Board’s Decision was dated 19 April 2021 while the Form 86 was filed some 2 years later on 25 April 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 delay in filing the application nor was there any application to ask for an extension of time in the Form 86 or his affirmation. His reason given at the hearing that he has no knowledge of the legal process clearly is not a good enough explanation for the very serious delay. In the circumstances, the court would refuse any extension of time for the applicant to file the leave application.

BACKGROUND

5.The applicant is a national of Thailand. He seeks non-refoulement protection on the basis that if he is refouled, he would be harmed or killed by the members and associates of a gangster group. His 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

6.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).

7.In the Form 86 and his 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 sufficient time and chance to arrange relevant evidence to his non-refoulement claim as well as his 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 his 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 country would not be able to protect. The Director failed to consider or give enough weightage to that evidence and ruled otherwise. [3]; and

(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];

8.Insofar 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.

9.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 [16-32].

10.It took into consideration the applicant’s case and evidence [33-40].

11.After thoroughly analysing and assessing the above [41-59], the Board came to the findings and conclusions that none of the grounds was made out [60-64].

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

13.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, this ground would not stand.

14.Lastly, I do not find the Board has adopted any improper or unfair procedures when assessing the explanations provided by the applicant. Nor did it in my view failed to consider or give sufficient weight to the evidence given by the applicant at the appeal. There is nothing to indicate that the Board has displayed any “unfair attitude” towards the applicant nor had failed in its enhanced standard of fairness when dealing with the arguments put forward by the applicant during the appeal.

15.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 intended challenge based on judicial review is not reasonably arguable and it has no realistic prospect 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

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