Case Document

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HCAL 1904/2024

[2026] HKCFI 5666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1904 OF 2024

BETWEEN

	Saisaen Sunisa	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 (Order 53, rule 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

2. The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 23 October 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 October 2024 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL001904_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant was unable to make out her claims for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 May 2024 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named the Board and “NON-REFOULEMENT CLAIM S PETITION OFFICE” as the putative respondents, when only the Board should be so named.

4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

5.The applicant failed to name any putative interested party, when the Director should be the putative interested party.

6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party.

The applicant’s case

7.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

8.In sum, the applicant claimed for non-refoulement protection because if refouled to Thailand, she would be harmed or killed by a female loan shark Ms Boonsub Pitsamai due to her inability to repay a loan.

Disposal on paper

9.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

10.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.The applicant did not advance any grounds for judicial review in Form 86, nor in her supporting affirmation dated 23 October 2024.

Discussion

12.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.Thus, despite the fact that the applicant failed to advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

14.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 25 September 2024. The applicant was present and was thus given the chance to present her case to the Board in person.

15.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. The Board’s material findings of fact in relation to the applicant’s claim were laid out in paragraphs 39 to 47 of the Board’s Decision, and it is not necessary to repeat the same here.

16.In gist, given the inconsistencies in the applicant’s evidence, the Board was not satisfied that the alleged loan agreement and the note of guarantee, which were provided in photocopy form to the Board by the applicant, were legitimate. The Board was of the view that, on balance, they were likely fabricated. Therefore, the Board rejected the applicant’s evidence that there was ever a loan in whatever sum.

17.Moreover, the Board explicitly stated that even if the loan did exist and the applicant’s evidence was to be believed, there was no or no reliable evidence to show (and the Board did not accept) that: (1) the loan shark would harm or kill the applicant if she were to return to Thailand; (2) the applicant faced risk throughout Thailand; (3) the applicant suffered injuries to the required severity; and (4) the state of Thailand was unwilling to help the applicant for a RC[1] reason.

18.The Board further found that the applicant’s very serious delay for 7.5 years in making a non-refoulement claim after her arrival in Hong Kong as behaviour detrimental to her credibility.

19.The Board had also discussed the availability of state protection to the applicant in paragraphs 62 to 74 of the Board’s Decision and found that even if the applicant were facing threats, there was nothing from the objective country of origin information (“COI”) to suggest that police or other protection would be unavailable to the applicant upon her return to Thailand.

20.Despite its findings as summarised above, the Board had also considered the viability of internal relocation for the applicant as a matter of caution. The Board laid out its full reasons in paragraphs 97 to 99 of the Board’s Decision for its conclusion that there was no reason why the applicant could not relocate to other parts of Thailand and stay there without undue hardship to further reduce the chances of the loan shark being able to locate her.

21.Thus, the Board concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM.

22.The finding of facts relating to a non-refoulement claim, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

23.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

24.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

25.For reasons aforesaid, the Leave Application is dismissed.

Dated the 7^th day of October 2026

( Gladys LEE )
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 his 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/Handed to the applicant/the applicant’s solicitors on: 07/10/2026 Applicant’s ref. no: Nil		Sent/Handed 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: 07/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 23691 Director of Immigration Putative interested party’s ref. no.: QA T/C 890/24 (formerly INCZ 5000739/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)