Suparot Kiranat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1322/2026

[2026] HKCFI 5144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1322 of 2026

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Andrew Li:

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

Observations for the Applicant:

INTRODUCTION

1.By a Form 86 filed on 22 July 2026 (“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 30 June 2026 (“the Board’s Decision”), which affirmed a decision by the Director of Immigration (“the Director”) dated 10 April 2026 in refusing the applicant’s non‑refoulement protection claim. He correctly named the Board as the proposed respondent and the Director as the proposed interested party in this case.

2.The applicant requested for a hearing but he was absent at the scheduled hearing on 3 September 2026. From the court record, the Notice of Hearing dated 25 August 2026 was sent to an address updated through the Immigration Department. Such updated address was, presumably, provided by the applicant to the Immigration Department in the first place.

3.Bearing in mind what Barma JA held in Re Abdus Salam [2019] HKCA 1091 at [19], i.e. in an application for leave to bring judicial review proceedings, it is not essential for the applicant to attend an oral hearing, when the applicant fails to turn up at an oral hearing he/she had requested, it should be regarded as a decision to forego the right to the requested oral hearing and the court can deal with the application on paper. Applying the same logic, if the applicant failed to provide an updated address to receive notices from the court, it also signals a disregard of, and indeed a decision to forego, the right of attending an oral hearing.

4.I therefore decided to proceed to deal with this application on paper notwithstanding the applicant’s absence at the hearing.

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 a drug dealer by the name of TUM in his village. 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 filed in support of the application, the applicant has specified the following grounds on which the relief is said to be sought: -

(1)  The decision-maker erred in law by misapplying or misinterpreting the relevant legal principles concerning non-refoulement, including the assessment of the “real risk” threshold and the definition of “torture” and “persecution” under applicable Hong Kong and international law, thereby breaching the statutory and constitutional duties of the decision-maker. [1];

(2)  The decision was manifestly unreasonable and irrational, as it failed to consider or properly evaluate the credible evidence presented by the applicant, particularly the credible risk factors and the specific threats from TUM, which could amount to a breach of the duty to give due consideration to all relevant facts. [2]; and

(3)  The decision-maker failed to afford the applicant a fair hearing by not thoroughly assessing or appropriately considering the applicant’s evidence and claims, including the subjective fears and the credible aspects of his case, thus denying him natural justice. [3]; and

(4)   The decision relied upon an unreasonably negative assessment of the applicant’s credibility, ignoring or dismissing credible aspects of his testimony and evidence that indicated a genuine risk of harm. The findings are based on a flawed evaluation of the evidence, amounting to an error of fact that is reviewable on judicial review. [4]; and

(5)  The decision failed to adequately consider or properly weigh the relevant COI, which might indicate a real risk of harm, torture, or persecution in Thailand, contrary to the principles of evidence-based decision-making. [5]; and

(6)  The decision did not properly consider the possibility of internal relocation or other protective measures available to the applicant, which could have mitigated the risk of harm, thus failing to explore all reasonable options consistent with the non-refoulement obligations. [6]; and

(7)  The decision’s conclusion that the risk to the applicant was “low and not real” was disproportionate and arbitrary, given the credible fears and circumstances, and failed to give weight to the applicant’s subjective fears and credible evidence. [7]; and

(8)  The decision infringes the applicant’s rights under the Basic Law and the Hong Kong Bill of Rights Ordinance, particularly the right to life, protection from torture, and the right to a fair hearing, contrary to constitutional and legal obligations. [8]

8.In my view, it is clear that the purported grounds relied on by the applicant are generic grounds without addressing the specific findings made by the Board in this case. A closer study of the Board’s Decision reveals that none of the purported grounds has any substance or application to the specific findings and conclusions made by the Board.

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 [16-41].

10.It took into consideration the applicant’s case and evidence [4-15], including the relevant COI [42] and the option of internal relocation [61-63].

11.After thoroughly analysing and assessing the above [43-50], the Board came to the findings and conclusions that the evidence of the applicant is incredible and inconsistent [51] and none of the grounds was made out [56-60].

12.Having looked at the Board’s Decision carefully, I do not find the Board has misapplied or misinterpreted the relevant legal principles concerning non-refoulment as alleged or at all.

13.I also do not find the Board’s Decision as “manifestly unreasonable and irrational”, particularly in relation to the alleged risk and specific threats from TUM as alleged. Nor do I find the Board has failed to afford the applicant a fair hearing by not thoroughly assessing and considering the applicant’s claims and evidence, including his subjective fears.

14.Further, I do not find the Board has failed to adequately consider or properly weigh the relevant COI or failed to properly consider the possibility of internal relocation.

15.Lastly, I do not find the Board has failed to give weight to the applicant’s subjective fears and evidence.

16.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 of the applicant based on judicial review is not reasonably arguable and it has no realistic chance of success.

CONCLUSION

17.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