Case Detail

CACV 377 /2023, [2025] HKCA 831

On appeal from [2023] HKCFI 2941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 377 OF 2023

(ON APPEAL FROM HCAL NO 1544 OF 2019)

________________________

BETWEEN
	Nguyen Van Huong	Applicant
	and
	Torture Claims Appeal Board / Non‑refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and Au JA in Court

Date of Judgment:

12 September 2025

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 26 November 2024 ([2024] HKCA 1098). The Court of Appeal rejected the appeal against the decision of Deputy High Court Judge To dated 13 November 2023 refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 10 January 2025. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant has not lodged any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

3. The applicant stated the following grounds of appeal in his Notice of Motion:

(1) The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision of the Director of Immigration (“the Director”);
(2) The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director was required to give reason justifying the decision.

Analysis and disposition

4. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

5. Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6. The applicant was late for 3 days in filing the Notice of Motion. He explained in his affirmation that he was and still is in custody of the Immigration Department so he did not receive the court’s decision in time. In view of the short delay, we accept the applicant’s explanation and grant extension of time for him to file his Notice of Motion.

7. As for the merits of the present application, the applicant’s grounds of appeal are not supported by any particulars or evidence. He failed to identify any particular mistakes in our decision, nor did he identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

8. For the above reasons, we dismiss the Notice of Motion filed on 27 December 2024.

(Susan Kwan)
Vice President

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 377 /2023, [2024] HKCA 1098

On appeal from [2023] HKCFI 2941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 377 OF 2023

(ON APPEAL FROM HCAL NO 1544 OF 2019)

________________________

BETWEEN

	Nguyen Van Huong	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and Au JA in Court

Date of Judgment:

26 November 2024

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. On 13 November 2023, Deputy High Court Judge To refused to grant leave to the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2. The applicant is a national of Vietnam. He entered Hong Kong illegally on 18 August 2015. He surrendered to the Immigration Department on 20 August 2015 and lodged a non-refoulement claim on the same day. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor.

The decisions of the Director and the Board

3. By a Notice of Decision dated 26 July 2018, the Director of Immigration (“the Director”) rejected the non-refoulement claim of the applicant on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4. The Director considered there is no substantial ground for believing that there will be any real and substantial risk of the applicant being harmed or killed by his creditor upon his return to Vietnam. The applicant was only verbally threatened by the creditor and was not physically hurt. He also managed to get away and was not hurt during his stay in Ha Long. There is no evidence that the creditor still has adverse interest on the applicant after the long lapse of time. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates any perceived risk.

5. The applicant appealed against the Director’s decision to the Board. The Board determined the appeal without a hearing pursuant to section 12 of Schedule 1A to the Immigration Ordinance (Cap 115).

6. The Board found that the applicant had not suffered intense physical or mental suffering and there is no substantial ground to believe that he would be subjected to a genuine and substantial risk of being killed by the creditor upon his return to Vietnam. The Board further found that the applicant’s fear of ill-treatment relates to a personal and financial matter, not on account of race, religion, nationality, membership of a particular social group or political opinion. In addition, the Board held that the applicant can relocate to Ho Chi Minh City or Ha Noi City without undue hardship and difficulty. Thus, the Board rejected the appeal on 3 June 2019.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 5 June 2019 to seek leave to apply for judicial review against the Board’s decision. He only reiterated the problems he faced in Vietnam without putting forward any grounds for his intended challenge.

The judge’s decision

8. DHCJ To dealt with the leave application on paper as the applicant did not request for an oral hearing. The judge held there is no error of law or procedural unfairness in the Board’s decision. As there is no realistic prospect of success in the applicant’s intended application for judicial review, the judge dismissed the leave application on 13 November 2023.

Grounds of appeal

9. In the Notice of Appeal and affirmation filed on 20 November 2023, the applicant stated his grounds of appeal as follows:

(1)  If he returns to Vietnam, his life will be seriously threatened or he will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill;
(2)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;
(3)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;
(4)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;
(5)  The Director and the Board “did not see the grounds” to reserve their decisions.

10. The applicant has submitted a written consent to the appeal to be disposed of on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 20 November 2023 requiring the applicant to lodge skeleton argument on or before 4 December 2023. The directions provided that in the event the applicant fails to lodge skeleton argument by the prescribed deadline, he shall be deemed to have abandoned his right to rely on written submissions and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials. The applicant has not lodged any written submissions by the prescribed time in this appeal.

Legal Principles

11. The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

12. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

13. The applicant’s grounds raised in this appeal have not been raised in his leave application in the court below. In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

14. In any event, the new grounds are just bare assertions without evidence in support. He failed to point out any error or unfairness in the judge’s decision. There is no viable ground to reverse the judge’s decision on appeal.

15. As the appeal is devoid of merit, we dismiss it accordingly.

(Susan Kwan)	(Thomas Au)
Vice President	Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2023] HKCFI 2941

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

NGUYEN VAN HUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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