Klangmueangkhwa Jirasak v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1071/2026 [2026] HKCFI 5596 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CNSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1071 of 2026 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following:
Order by Deputy High Court Judge To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 11 June 2026 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 28 May 2026 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 2 April 2026 (the “Notice”) refusing his application for non-refoulement protection. 2.The Applicant is a Thai national, now aged 32. He arrived in Hong Kong on 6 January 2026 and overstayed since 14 January 2026. He surrendered to the Immigration Department on 3 February 2026. On the following day, he lodged a claim for non-refoulement protection by written signification. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision. The Applicant’s case 3.The factual background leading to the present application, the basis of the Applicant’s claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below[1] for reference. He claims that, if return to Thailand, he will be harmed or killed by a loan shark for being unable to repay a loan of 150,000 Thai baht owing to the loan shark for the purpose of settling his brother’s loan. The finding of the Board 4.The Applicant testified before the Board. The Board basically accepted his evidence after clarifying some misleading information he had previously given to the Director as to his knowledge of his brother’s loan. The Applicant worked in the family business in the construction industry. The business was wholly owned by his brother. In early 2025, his brother was in financial difficulties and asked for the Applicant’s assistance. The Applicant borrowed 150,000 Thai baht at a monthly interest of 15% from a loan shark to settle part of his brother’s loan. The loan shark was introduced to the Applicant by his friends from his village. He did not belong to or has been associated with any organisations, groups or political parties in Thailand. 5.The consensus of the family was that the Applicant shall be responsible for the interest payments while the business income would be used to repay the principal. The Applicant was able to pay interest until September 2025 and thereafter he defaulted. He met with the loan shark once and was threatened with death. He was also threatened directly by the loan shark over the phone once. Out of fear, he moved to Chon Buri and stayed until January 2026 when he fled to Hong Kong. Neither he nor any member of his family had suffered any physical injury or property damage from the loan shark or his subordinates. 6.On the evidence, the Board found the Applicant would not be subjected to any real risk of proscribed harm if returned to Thailand. It found from authoritative and credible country of origin information (“COI”) that despite corruption and other problems with the Thai police, the government is taking steps to improve the situation. The government has set up the Office of the Ombudsman and the National Anti-Corruption Commission and prosecutes crimes or illegal activities including corruption and loan-sharking. It also found the Applicant had failed to show it would be unsafe and unreasonable for him to relocate to any of the alternative places suggested by Director. 7.Applying the law applicable to non-refoulement protection, the Board found the Applicant is not entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed the Applicant’s appeal. Legal principles applicable to judicial review 8.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[2]. Grounds for judicial review 9.At the hearing, after the above principles had been explained to the Applicant, he confirmed he had no complaints about errors of law, procedural unfairness and irrationality in the Decision. However, he had advanced six grounds of application in the Form 86. Ground (1): Failure to properly assess the risk of torture 10.The Applicant complains that the Board’s finding that he would not face a real and personal risk of torture is unreasonable in the light of credible evidence that he was threatened with death and that such threats were ongoing. 11.The Board’s finding is based on the Applicant’s own evidence that he had only been directly threatened by the loan shark once in a meeting with the loan shark and once over the telephone; that neither the loan shark nor his subordinates had physically harmed the Applicant or his family nor damaged their property and that the loan shark had never executed the threats. While actual serious physical injury to the claimant or damage to his property is not necessary for proving risk of torture, their absence reflects the lack of such risk or that the risk of being inflicted with such injuries which would cause severe pain and suffering as to amount to torture would be low. What inference to draw or not to draw is solely a finding of fact for the Board. On the evidence, it was open to the Board to draw from the absence of such injuries, particularly to the Applicant’s father and brother who remain in Thailand and on whom the loan shark had ample opportunities to inflict severe pain and suffering that the loan shark indeed had no such intention to whether severely harm, kill or cause severe pain and suffering to the Applicant. 12.The Applicant’s alternative argument under this ground is that even if the threat was not sufficient to constitute physical harm the Board had failed to properly consider that the threats and intimidation could amount to cruel, inhuman or degrading treatment were credible and sufficient but had not been properly assessed. To constitute torture in the form of mental pain or suffering, the Applicant has to show that such threat and intimidation constitute cruel, inhuman or degrading treatment which have the effect of causing the Applicant mental pain or suffering. It is accepted that the Applicant was in fear, but he never argued that he had mental pain or suffering as a result of the threat or intimidation. This ground is not supported by the evidence. Ground (2): Failure to properly assess the risk to life 13.Under this ground, the Applicant submits that the Board erred in law and/or acted unreasonably in concluding that he would not face a risk of violation of his right to life, despite evidence that threats from the loan shark could result in imminent harm or death. This ground is probably raised by the Applicant as a result of his misunderstanding of BOR 2. 14.Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance mirrors article 6 of the International Covenant on Civil and Political Rights (“ICCPR”). Article 6 of the ICCPR was construed by the courts of the state parties to ICCPR as imposing obligation on state parties to refrain from intentional and unlawful taking of life and to take appropriate steps to safeguard the lives of those within its jurisdiction: see Osman v United Kingdom[3]. Only the state parties could be in breach of the ICCPR. A non-state actor acting without consent or acquiescence of the state cannot. In Ubamaka Edward Wilson v Secretary for Security and Director of Immigration[4], the Court of Final Appeal held that if there are substantial grounds for the Immigration Department to believe that there is a personal and substantial risk of a claim’s right under BOR 2 being violated in the claimant’s home state should the claimant be refouled there, it constitutes a good ground for restraining Hong Kong from removing him to his home state. BOR 2 Risk ground would only be engaged if the Applicant would be subject to capital punishment inflicted by the Thai government or would be killed under circumstances which constitutes the crime of genocide. Thus, the right protected by BOR 2 has no relevance to risk of harm complained of by the Applicant. He has to rely on the other applicable grounds in respect of harm created by non-state actors. Here, the Applicant’s problem is the ill-treatment arising from his private dispute with the loan shark which the Thai government was not involved nor had acquiesced. There was no evidence to show that the Thai government was unwilling or unable to afford protection to the Applicant. The condition in Ubamaka is not satisfied. There is no substance in this ground. Ground (3): Failure to properly assess the risk of inhuman or degrading treatment 15.Under this ground, the Applicant submits that the Board failed to properly evaluate whether the Applicant would face treatment amounting to torture or inhuman or degrading treatment particularly considering the threat and intimidation from the loan shark. He also claims the finding that the ill-treatment did not reach the minimum level of severity is unreasonable, irrational and contrary to evidence. On the Applicant’s own evidence, he had only been subjected to two verbal threats from the loan shark. He had never been physically harmed. He had tendered no evidence that the loan shark or his subordinates had inflicted any mental pain and suffering on him. For the same reasons as given in paragraph 11, there is no evidence of inhuman or degrading treatment for the Board to assess. There is no substance in this ground. Ground (4): Failure to consider the capacity of the Thai authorities to provide protection 16.Under this ground, the Applicant submits that the Board failed to properly consider or give adequate weight to credible evidence that the Thai authorities are unable or unwilling to provide effective protection against private acts of violence, threats, or intimidation. On the evidence, the Board had considered COI produced by the Director as well as those provided by the Applicant. The weight to be given to the various COI is a finding of fact solely for the Board, which this Court may not intervene, save for errors of law, procedural unfairness or irrationality. This Court could find no such vitiating elements. Further, the primary basis of the Board’s decision is that the Applicant would not be subjected to any real risk of proscribed harm if returned to Thailand. The Board’s finding on availability of state protection and internal relocation is obiter and not necessary for its Decision. Ground (5): Failure to properly consider internal relocation 17.Under this ground, the Applicant submits that the Board failed to properly evaluate the Applicant’s personal circumstances, the practicalities of relocation, and whether such relocation would be unduly harsh or unreasonable. The Board had directed itself to the applicable legal principles in paragraphs 133 to 134 (in pages 30 and 31) of its Decision. It referred to the relevant COI and discussed feasibility of relocation with the Applicant. It understood the Applicant’s concern was that the loan shark could locate him in his new locations and his lack of financial means to relocate. As for his first concern, the Board found the loan shark was not as powerful as the Applicant believed. With that the Applicant did not disagree. He admitted that he did not know if the loan shark was powerful or not. As for his second concern, the Board found it was only the Applicant’s conjecture and in any event, his concern was only temporary. It was on this basis that the Board found the Applicant had failed to show that it was unsafe and therefore unreasonable for him to relocate. All these are finding of facts solely for the Board which the Court may not intervene, save for errors of law, procedural unfairness and irrationality. For reasons as given in the next section, the Court could find no such vitiating elements. Further, it was the Board’s finding that he would not be subjected to any real risk of proscribed harm if returned to Thailand. Hence, the Board’s finding on internal relocation was obiter and not necessary for the Board’s Decision. Ground (6): Failure to consider the capacity of the Thai authorities to provide protection 18.Under this ground, the Applicant claims that the decision-making process was unfair in that his credible evidence was not properly evaluated and the Board did not give adequate weight to his explanation and evidence. Apart from lack of particulars, this ground is in substance an appeal against the finding of fact and assessment of witness credibility which are solely within the realm of the Board. For reasons as given in the next section, the Court could find no grounds to intervene on error of law, procedural unfairness and irrationality. 19.The Applicant also made under this ground a host of allegations that he was not given a fair opportunity to address material issues, particularly regarding the credibility of his account and the risk assessment; and that the Decision is unlawful, irrational, unreasonable and in breach of natural justice. Again, these complaints are all framed in general terms and lacking in particulars. They are contrary to his earlier confirmation that he had no such complaints about procedural unfairness and irrationality. The Court can find no substance in this ground. Overall scrutiny 20.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. 21.The Board accepted the Applicant’s evidence and assessed his claim on the basis of the case as he asserted. It made a few further finding of fact on the basis of his case and the COI, such as that the loan shark and his subordinates were not state actors, that he had only been verbally threatened twice by the loan shark and had not been inflicted any harm by the loan shark or his subordinates, not to mention harm which attained the minimum level of severity, and that the loan shark had no intention to seriously harm him or to kill him. It came to the conclusion that the Applicant would not be subjected to any real risk of proscribed harm if returned to Thailand. It also found that the Applicant had failed to show that the Thai government would not exercise due diligence to prevent, investigate and punish those inflicted the feared treatment on him on his return to Thailand or that it would be unsafe and unreasonable for him to relocate to any of the alternative places suggested by Director. Applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality. On the evidence, it was open to the Board to make those finding of fact. The Court could detect no other error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The proposed judicial review has no realistic prospect of success. Conclusion 22.For the above reasons, the Applicant’s leave application is refused. Dated the 8th day of October 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
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