Kakaeo Kirita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1881/2025

[2026] HKCFI 5699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1881 of 2025

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused. 

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 June 2025 of the Torture Claims Appeal Board (“the Board’s Decision), which dismissed her appeal against the Director’s Decision refusing her non-refoulement claim as mentioned below.  

2.The applicant appeared before the Court on 30 September 2026. 

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party. 

The applicant

4.The applicant is a national of Thailand.  She is an illegal immigrant.  She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her boy-friend, Ray who was violent to her in Thailand. 

5.Details of her claim are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001881_2025_files/the_Board's_Decision.pdf

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”). 

7.By way of Notice of Decision dated 22 January 2025 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.  

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 16 April 2025, the Board conducted an oral hearing for her.  The applicant had given evidence and answered the Board’s questions. 

9.Having considered the evidence, the Board found that the applicant did not seek protection shortly after arriving in Hong Kong the first time she came to Hong Kong, and she did not do so in the second time she came to Hong Kong until she had overstayed, which showed the threat was not imminent [36]; that the ill-treatment from Ray did not attain the minimum level of severity and she was not a credible witness [37]; that state protection will be available if she returns to Thailand; and internal relocation is viable [90]. 

10.For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decision. 

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 22 August 2025 for leave to apply for judicial review of the Board’s Decision. 

12.In the affirmation, the applicant did not raise any specific reason to challenge the Board’s Decision.  She asked for a hearing.  She has attached a copy of the Board’s Decision to her affirmation. 

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant confirmed that she had told her full story to the Board.  She did not think the Board was wrong, but she was unhappy about it.  

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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.”

16.The applicant has raised no reason for this Court to interfere with the Board’s Decision. 

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision. 

DISPOSITION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.  

Dated the 14^th 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

Form CALL-1