RE TIEU VAN THUYET

CACV 72/2023, [2025] HKCA 1058

On appeal from [2023] HKCFI 557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 72 OF 2023

(ON APPEAL FROM HCAL NO. 1133 of 2019)

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JUDGMENT

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Hon Chu VP giving the Judgment of the Court:

1.  On 13 June 2025, this Court handed down a judgment [2025] HKCA 529 dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 2 March 2023 refusing to grant him leave to apply for judicial review.

2.  On 22 August 2025, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  He has also lodged a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.  Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is late by about six weeks, which is not an insignificant delay.  In his supporting affirmation, the applicant explained he had been detained at the Castle Peak Bay Immigration Centre was only told by the case worker that his appeal had been dismissed.  He also said that being unrepresented and uneducated, he was not aware of the time limit for appeal and required assistance to draft the appeal papers.  

7.  From the address in the Notice of Motion and accompanying affirmation, we accept that latest by August 2025 the applicant has been detained in the immigration centre.  The judgment was sent to the address stated in the Notice of Appeal, which is in Mongkok.  Probably it did not reach the applicant at the time.  However, it is the duty of the applicant to promptly inform the Court of any change in his address.  We are therefore not persuaded that the applicant has satisfactorily explained his delay.  Nevertheless, considering that he is unrepresented and has been held in custody, we will focus on the merits of the present application.

8.  On the merits of the application, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if 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.

9.  The notice of motion set out three grounds of appeal:

(1)  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 and the Adjudicator were required to give reasons justifying the decisions.

(2)  The Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration in refusing the application for judicial review.

(3)  The decision maker relied on country of origin information and facts that favour the rejection of the applicant’s claim. Actual life is different. The officers and the Court had ignored the overwhelming evidence of violence committed on the minorities.

(4)  It is an error of law of great general or public importance that the decision maker has not considered all relevant aspects of the applicant’s case.  

(5)  The Judge did not apply the law properly and there has been procedural unfairness. 

10.  The written submission referred to several authorities on high standard of fairness and the principle of Wednesbury unreasonableness, and argued that the high standard of fairness applied because of the importance of the decision to the applicant.  It also complained that the Torture Claims Appeal Board acted in a procedurally unfair manner in assessing his credibility.

11.  We are of the view that the matters put forward in the notice of motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal:     

(1)  They all relate to the applicant’s personal circumstances and his claim, and do not involve any question of great general or public importance. 

(2)  The complaints about procedural unfairness and irrationality for the reasons we gave at paragraphs 13 to 15 of our judgment, the complaints of irrationality and procedural unfairness were not raised as a ground for judicial review before the Judge or as a ground of appeal before this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the appeal before it.[1]  Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[2]  This is particularly the case when the new complaints were no more than general assertions without particulars.      

(3)  The complaint that the Torture Claims Appeal Board wrongly assessed his credibility is also misplaced because the Board did not make an adverse finding on the applicant’s credibility and had assessed his claim based on his factual case.   

(4)  The applicant has also not shown how the legal principles and authorities cited in his written submission relate to his case.   

12.  We also do not see any basis for the “or otherwise” limb under section 22(1) (b). 

13.  In conclusion, the statutory requirements for giving leave to appeal are not met.  Having regard to the delay and the lack of merits of the present application, there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss, the Notice of Motion.

CACV 72/2023 , [2025] HKCA 529

On appeal from [2023] HKCFI 557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 72 OF 2023

(ON APPEAL FROM HCAL NO. 1133 OF 2019)

________________________

________________________

________________________

J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 2 March 2023 ([2023] HKCFI 557)  refusing to give him leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing his appeal against the decision of the Director of Immigration (“the Director”)  which rejected his non-refoulement protection claim.

2.  The applicant had consented to the Court of Appeal disposing of the appeal on the papers without an oral hearing. Despite directions given by the Court, he did not lodge any written submission to support the appeal.  

3.  The applicant is a Vietnamese national aged 51.  He entered Hong Kong illegally and surrendered to the Immigration Department on 8 October 2015.  He subsequently raised a non-refoulement claim based on a fear of being harmed or killed by his creditor and his followers due to his inability to repay a debt.  His claim was set out in detail in [7] of the Director’s decision.  In gist, the applicant claimed that in 2013 he obtained a loan from a moneylender in connection with his farm.  After his stock was wiped out by a plague, he was unable to keep up with the repayment.  In June 2014, the moneylender and his followers went to the applicant’s home and assaulted him with bare hands.  He did not report the attack to the police. Thereafter the applicant went into hiding.  Eventually in September 2015, he sneaked into Hong Kong via mainland China.   

4.  By a Notice of Decision dated 17 May 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. 

5.  The Board dealt with the applicant’s appeal on paper.  By a decision given on 24 April 2019, it dismissed the appeal.  

6.  In gist, the Board considered that on the applicant’s case, it was a private dispute, the harm inflicted by the moneylender and his people did not attain the minimum level of severity, and there is no real risk of the moneylender inflicting serious harm on him.  The Board further found internal relocation alternatives were reasonably available, which would reduce any risk of harm that the applicant might face.  The Board concluded that the applicant failed to prove his entitlement to non-refoulement protection under any of the applicable grounds.

7.  The applicant filed a Form 86 and an affirmation on 29 April 2019 to seek leave to apply for judicial review against the decision of the Board.  Other than reiterating the factual basis of his claim in the supporting affirmation, the applicant did not provide any substantive grounds for seeking relief. 

8.  The Judge dealt with the leave application on paper.  By a Form CALL-1 dated 2 March 2023, the Judge dismissed the application.  In sum, the Judge pointed out that the applicant did not provide any grounds to challenge the findings made by the Director and the Board.  The Judge further held that there was no error of law, irrationality or procedural unfairness in the Board’s decision, and concluded that the intended judicial review had no realistic prospect of success. 

9.  By a notice of appeal dated 9 March 2023, the applicant appealed the Judge’s decision to this court. 

10.  The grounds of appeal in the notice of appeal stated that: (1)  the creditors and gangsters in Vietnam are cruel, violent and will readily kill people; the applicant will be tortured, beaten or killed by his creditor if he returns to Vietnam; (2)  internal relocation is not feasible because the applicant will face many difficulties and obstacles, he will be disadvantaged in the labour market and he may not be able to adapt and make a living; (3)  the gangsters will be able to track the applicant as they have a nationwide network and help from the corrupt government officials and police; and (4)  the Director has disregarded the applicant’s human right. 

11.  The applicant also filed an affirmation in which he said there was a good ground of appeal that was not being considered at the leave application stage.  We will not consider this affirmation as no leave has been given for the applicant to file new evidence in this appeal.  In any event, the affirmation only makes a vague assertion and has not identified what is the ground of appeal referred to.

12.  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.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.

13.  We are of the view that the matters stated in the notice of appeal do not constitute viable grounds of appeal: 

(1)  Importantly, the applicant has not identified any error in the Judge’s reasoning and decision.  Moreover, the grounds in the notice of appeal had not been raised before the Judge.  It is not open to the applicant to put forward new grounds in an appeal especially when they are fact-sensitive.  In any event, there is no evidence to support the assertions.  

(2)  Further, the Board found that the applicant’s claim failed to meet the legal requirements of the applicable grounds.  The applicant has not advanced any ground to challenge the Board’s assessment of the future risk of harm or the conclusions of the Board. 

14.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person