Phearpong Charinthorn v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 986/2024

[2026] HKCFI 4818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 986 of 2024

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 (Non-refoulement Claims) Val Chow:

1.  Form 86 be amended on the court’s own motion that the Director of Immigration be named as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 filed on 24 June 2024 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / an adjudicator of the Non‑refoulement Claims Petition Office (the “Board”) dated 22 March 2024 (the “Board’s Decision”)[1].

2.In this type of cases, the usual practice is that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion.

3.As the Applicant did not request for an oral hearing, the Leave Application was considered on paper.

Background

4.For the sake of brevity, I shall not repeat the Applicant’s background, the basis and history of the claim and the arguments advanced before the Board which are all set out in the Board’s Decision in considerable detail. The hyperlink to the Board’s Decision is included below[2] for reference. In short, the Applicant came from Thailand. She claimed that her life will be in danger if she were to return to her home country as she had obtained a loan from a loan shark (who was also said to be a police officer) and his associates (together, the “Adversaries”) that she was unable to repay.

Discussion

5.The leave application is intended to be a filtering process and elaborate reasons are not necessary, see: Re Zunariyah [2018] HKCA 14 at §23. Hence, I shall set out the brief reasons for my decision below.

6.The relevant general principles are well established. Judicial review does not operate as a further avenue of appeal. Though in non-refoulement cases, the Court applies a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court must not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, risk of harm, availability of 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, procedural unfairness or irrationality in the decision of the Board, see: Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

7.An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection HCAL 21/2015 (unreported, 22 December 2016) per Chow J (as he was then) at §142.

8.In the Form 86, the Applicant did not provide any grounds in support of the Leave Application. On account of such failure to put forward an effective ground of review, the Leave Application ought to be dismissed.

9.Notwithstanding the above, I have reviewed the Board’s Decision, I do not find any error of law, procedural unfairness or irrationality which can give rise to a reasonably arguable case for judicial review.

10.It is plain that the Board has given adequate reasons for its decision to reject the Applicant’s claim after consideration of the Applicant’s evidence. Amongst others, the Board was plainly correct in finding that there is no evidence of any real risk of serious harm:-

(1)  The Applicant’s case was not found to be credible (§§84-85). There was no evidence to show that the Applicant had indeed obtained the loan from the Adversaries (§70). The Applicant’s claim that the loan shark was a police officer was vague and not corroborated by any evidence. Even on the Applicant’s case, there was no suggestion that the loan shark was a particularly high ranking or senior police officer (§§13, 24i).

(2)  There was no evidence that the Applicant was actually subject to any serious harm. On her own evidence, she was verbally threatened and some of her properties were taken away. Her family had never been harmed in Thailand (§§73, 89).

(3)  Her evidence on whether she had made any report to Thai police was also inconsistent and contradictory (§79). Her claim that she came to Hong Kong to seek protection was inconsistent with the fact that she only raised the non-refoulement claim after she was arrested for overstaying in Hong Kong (§83).

(4)  On state protection, having considered relevant COI, the Board was entitled to form the view that adequate state protection is available in Thailand notwithstanding the existence of certain shortcomings such as corruption and inefficiencies in the legal system. Even if the Adversaries include police officers, there is no evidence that they were able to act with impunity in Thailand (§§25-48, 78, 80-82, 91).

(5)  The Applicant, as an able-bodied adult with a university degree and experience working in a number of occupations, should have no difficulty relocating to places such as Bangkok, Chiangmai or Pattaya. There was no evidence that she would face any persecution or harm after relocation. More importantly, even on the Applicant’s own case, the Adversaries were unable to locate her within Thailand from June 2022 to June 2023 (§§49-50, 74, 89, 92).

11.In these circumstances, the Board’s Decision cannot be said to be irrational, even on the enhanced standard.

12.The proposed judicial review of the Board’s Decision has no merits. Accordingly, leave is refused.

Conclusion

13.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 16^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