Case Detail

CACV 152 /2024, [2025] HKCA 1142

On appeal from [2024] HKCFI 878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 152 OF 2024

(ON APPEAL FROM HCAL NO 1296 OF 2019)

________________________

BETWEEN
	Manh Thi Mai	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 Cheung JA in Court

Date of Judgment:

23 December 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 20 November 2024 ([2024] HKCA 1076). The Court of Appeal rejected the appeal against the decision of Deputy High Court Judge K W Lung dated 11 April 2024 refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board concerning her 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 15 April 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 her grounds of appeal in the Notice of Motion which may be summarised as follows:

(1)     If she returns to Vietnam, her life will be seriously threatened or she 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 people;
(2)     The suggestion of the Director of Immigration (“theDirector”) 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.

4. These grounds are substantially the same as those she raised in her Notice of Appeal.

5. In her affirmation filed on 1 April 2025, she further contended that the decision made by the Court of Appeal has been reached unfairly without allowing her an opportunity to clarify her case and situation in her country.

Analysis and disposition

6. 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).

7. 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.

8. The applicant was late for more than three months in filing the Notice of Motion. The delay is substantial and she did not provide any explanation for her delay. There is no good ground for this court to grant extension of time for her to file the Notice of Motion.

9. In any event, the applicant’s grounds of appeal are devoid of merits. In particular, her contention that the Court of Appeal has reached its decision unfairly without allowing her an opportunity to clarify her case is without basis. The applicant had submitted a written consent for the appeal to be disposed of on paper without an oral hearing. She was directed to lodge written submissions but she failed to do so. The rest of her grounds are not supported by sufficient particulars or evidence. She did not identify any particular mistakes in our decision, nor did she 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).

10. For the above reasons, we dismiss the Notice of Motion filed on 1 April 2025.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 152 /2024, [2024] HKCA 1076

On appeal from [2024] HKCFI 878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 152 OF 2024

(ON APPEAL FROM HCAL NO 1296 OF 2019)

________________________

BETWEEN

	Manh Thi Mai	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 Cheung JA in Court

Date of Judgment:

20 November 2024

________________________

J U D G M E N T

________________________

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

1. On 11 April 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 19 April 2024.

2. The applicant is a national of Vietnam. She entered Hong Kong illegally on 13 December 2015 and was arrested by the police on 21 December 2015. She lodged her non-refoulement claim on 24 December 2015 on the basis that, if refouled, she would be harmed or killed by her creditor and his men.

The decision of the Director

3. By a Notice of Decision dated 15 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4. The Director assessed that the level of risk of harm upon the applicant’s return to her home country is low as the creditor and his men had only made verbal threats without using any violence towards the applicant or her family members. The Director considered that the mental and physical suffering of the applicant has not attained the requisite minimum level of severity. The Director found that the applicant’s problem is related to private dispute which does not involve the interest of the Vietnamese government. The Director further held that state protection and internal relocation options are available to the applicant in Vietnam which further lower or negate any perceived risk.

The decision of the Board

5. The applicant attended the hearing of the appeal against the Director’s decision before the Board on 26 March 2019[6]. The Board considered the applicant’s evidence concerning the core issues is not credible because of the significant inconsistencies in her evidence. The Board also held that the alleged harm has not attained the requisite minimum level of severity even if her evidence were to be accepted. The Board further found that the applicant’s dispute with her creditor is private in nature and there is no evidence to show that her problem involves any state acquiescence. The Board also held that the applicant does not have sufficient evidence to show that she would not receive reasonable state protection in Vietnam and internal relocation in Vietnam is not unduly harsh for her. Thus, the Board dismissed the appeal on 10 May 2019.

The intended judicial review

6. The applicant filed a Form 86 and an affirmation on 15 May 2019 to seek leave to apply for judicial review against the decision of the Board. She reiterated that she would face genuine and substantial risk of being subject to torture or killed by her creditor and his men in her supporting affirmation, without putting forward any specific ground for her intended challenge against the Board.

The judge’s decision

7. DHCJ K W Lung considered the leave application on paper as the applicant did not request for an oral hearing. The judge found that the applicant has no valid reason to challenge the Board’s decision and the Board is entitled to come to its conclusion. As the applicant did not have any realistic prospect of success in her proposed judicial review, the judge refused the leave application on 11 April 2024.

Grounds of appeal

8. The applicant stated her grounds of appeal in the Notice of Appeal which may be summarised as follows:

(1)  If she returns to Vietnam, her life will be seriously threatened or she 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.

Analysis and disposition

9. The applicant has submitted a written consent for the appeal to be disposed of on paper without an oral hearing.

Legal principles

10. 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.

11. 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 scrutinising 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.

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 are just bare assertions without evidence in support. She does not have any evidence to refute the Board’s findings and failed to identify any error in the judge’s decision. It has not been demonstrated that judge had made errors of law or failed to take account of relevant matters placed before the court or was otherwise plainly wrong.

14. The applicant’s grounds of appeal are devoid of merit, we therefore dismiss the appeal accordingly.

(Susan Kwan)	(Peter Cheung)
Vice President	Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2024] HKCFI 878

[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.

[6] Although the first page of the Board’s decision stated that the applicant was absent at the hearing, §7 of the decision stated that the applicant had attended the hearing of the appeal

MANH THI MAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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