Case Document

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HCAL 913/2025

[2026] HKCFI 5475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 913 OF 2025

BETWEEN

	Phakhinsombat Phakhin	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested 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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 52-year-old national of Thailand who arrived in Hong Kong on 2 March 2024 with his wife as visitors and with permission to remain as such up to 1 April 2024 when they did not depart and instead overstayed, and on 5 April 2024 they surrendered to the Immigration Department and jointly raised a non-refoulement claim for protection on the basis that if they returned to Thailand they would be harmed or killed by some corrupt district officer and associates for having reported his corruptions to the authorities. They were subsequently released on recognizance pending the determination of their claims.

2.The Applicant was born and raised in Pang Mapha District, Mae Hong Son Province, Thailand. After leaving school he ran a food store to make his living, married his former wife and raised a family with their 2 children in his home district.

3.In 2019, he started his own drinking water plant business in his home district, and after divorcing his first wife, he subsequently met and married his second wife who then assisted him in the running of his business.

4.During the running of his business the Applicant discovered illegal excavation works in his home district that caused the pollution of the local rivers, of which he suspected were due to acts of corruptions and/or misuse of government fundings which involved a District Officer of the Pang Mapha District by the name of Soichit, and that his subsequent reports of the corruptions to the authorities had led to the arrest and successful prosecution and conviction of Soichit by the National Anti-Corruption Commission (“NACC”).

5.However, thereafter the Applicant and his wife started to receive threats from unknown men whom they suspected were Soichit’s associates or subordinates trying to harm or kill them in revenge, and so they took overseas trips to Hong Kong and Malaysia to avoid such threats, and on their last visit to Hong Kong in March 2024, the Applicant was informed by his sister in Thailand that those unknown men armed with weapons had been seen outside his home in his home district, the Applicant and his wife decided that it was not safe to return home and therefore overstayed in Hong Kong and subsequently raised their non-refoulement claim for protection, for which they each completed a Non-refoulement Claim Form (“NCF”) on 2 August 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 24 October 2024, the Director of Immigration (“Director”) rejected the claims of both the Applicant and his wife on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.In his decision, the Director took into account of all the relevant circumstances of the claims of the Applicant and his wife and assessed the level of risk of harm from Soichit or his people upon their return to Thailand as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Soichit to seriously harm or kill them or that those unknown men were sent by Soichit to harm or kill them other than their own suspicions and speculations, that in any event in the absence of any official involvement and the fact that Soichit had been successfully prosecuted and convicted by NACC that state or police protection would be available to the Applicant and his wife if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Thailand with a large population of 69 million people spread across a vast territory of more than 513,000 square kilometers that it would not be unduly harsh for the Applicant and his wife as able-bodied adults with working experience to move to other areas of the country away from their home district in large cities such as Chiang Mai or Phuket where it would be difficult if not impossible for anyone to locate them.

8.On 30 October 2024, the Applicant and his wife each lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he together with his wife jointly attended an oral hearing on 4 December 2024 before the Board during which both of them gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 18 February 2025 both of their appeals were dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1], the Board found material inconsistencies and discrepancies in the evidence of both the Applicant and his wife that it doubted the credibility of their respective claim of fear of harm from Soichit or his people that caused them to overstay in Hong Kong to seek protection, that there was no reliable evidence of those unknown men were sent by Soichit or to have any connection with Soichit or to have any real intention to seriously harm or kill either of them, and that in any event in the absence of any official involvement given the prosecution and conviction of Soichit by the Thai authorities that state or police protection would be available to the Applicant and his wife upon their return to Thailand if resorted to as well as reasonable internal relocation alternatives for them to move safely to other parts of the country away from their home district without any risk of being located by anyone that their claims for non-refoulement protection failed on all applicable grounds.

10.On 15 April 2025, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real is a localized one and without any official involvement that it is not unreasonable or unsafe for him to relocate to other part of Thailand, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss his application.

Dated the 29^th day of September 2026

(Chung Lai Fan, Christine)
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 29 September 2026 Phakhinsombat Phakhin 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 29 September 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 24878 - 24879 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1889/24, 1890/24 (formerly RBCZ 5001485/24 - 5001486/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)