Case Document

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HCAL 2128/2024

[2026] HKCFI 5660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2128 OF 2024

BETWEEN

	Khunthayok Chainarong	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 the name of the putative interested party be amended to “Director of Immigration”.

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 14 November 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 8 November 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/HCAL002128_2024_files/the_Board's_Decision.pdf

2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 10 July 2024, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named the Board and “NON-REFOULEMENT CLAIMS 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 also named “THE HONG KONG IMMIGRATION DEPARTMENT” as the putative interested party, when the Director should be so named.

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 the name of the putative interested party to “Director of Immigration”.

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, he would be harmed by a money lender due to his inability to repay a claimed 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 his supporting affirmation dated 14 November 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 4 November 2024. The applicant was present and was thus given the chance to present his 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. Its consideration of the applicant’s evidence and the applicant’s claim were laid out in paragraphs 12 to 66 of the Board’s Decision, and it is not necessary to repeat the same here.

16.In gist, the Board did not accept that the applicant took out a loan or had any outstanding debts. The Board did not accept the claimed past incidents. Due to the applicant’s problematic evidence, the Board rejected the entirety of the applicant’s non-refoulement claim. The Board considered that the applicant manufactured the claimed loan, debts and past incidents in order to create a profile to prolong his stay in Hong Kong.

17.Despite its findings as summarised above, the Board had also considered the viability of internal relocation for the applicant. The Board laid out its full reasons in paragraphs 68 to 72 of the Board’s Decision for its conclusion that the applicant would be able to find work and shelter to support himself, and that he could safely and reasonably relocate, for example, to Chiang Mai, Phuket, or another part of Thailand without undue hardship.

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

19.The finding of facts relating to a non-refoulement claim, including the assessment of evidence 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.

20.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.

21.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

22.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 24153 Director of Immigration Putative interested party’s ref. no.: QA T/C 1118/24 (formerly INCZ 5000974/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)