Case Detail

CAMP 47 /2024, [2025] HKCA 712

On appeal from [2023] HKCFI 1800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 47 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 970 OF 2019)

________________________

BETWEEN
	Vu Van Tuan	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:

1 August 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 1078). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 20 July 2023 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s 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 16 December 2024. 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.

3. The applicant stated his grounds of appeal in the Notice of Motion which are substantially the same as the submissions in his previous application to the Court of Appeal. He further stated that it is unsatisfactory for the Court of Appeal to rule that he had no chance of success in reviewing the decisions of the Torture Claims Appeal Board and the Director of Immigration.

Analysis and Disposition

4. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.

5. In the present application, the applicant failed to give any particulars or evidence to support the contention that our decision is unsatisfactory. The rest of his grounds have already been dealt with in our judgment of 20 November 2024. The applicant failed to identify any particular mistakes in our judgment. He also failed to 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).

6. Therefore, we dismiss the Notice of Motion filed on 2 December 2024.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

CAMP 47 /2024, [2024] HKCA 1078

On appeal from [2023] HKCFI 1800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 47 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 970 OF 2019)

________________________

BETWEEN

	Vu Van Tuan	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 20 July 2023, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2. On 22 December 2023, the applicant filed a summons at the Court of First Instance to seek extension of time to appeal against that decision. The summons was dismissed by the judge on 5 March 2024[2].

3. On 15 March 2024, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.

4. The applicant is a national of Vietnam. He entered Hong Kong illegally on 12 October 2014. He surrendered to the Immigration Department and lodged a non-refoulement claim the next day. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditors.

The decisions of the Director and the Board

5. By a Notice of Decision dated 26 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

6. The applicant appealed against the Director’s decision to the Board. The appeal was heard before the Board on 22 March 2019. The Board found that the alleged ill-treatment has not attained the requisite minimum level of severity. The Board noted that the applicant’s problem was related to private matters concerning the repayment of outstanding loans. The Board considered that avoidance of loan repayment is not one of the Convention reasons and there is no evidence to show that the applicant was targeted by the Vietnamese government. In addition, the Board held that reasonable state protection is available to the applicant in Vietnam. The Board concluded that the applicant’s application for non-refoulement protection fails on all applicable grounds and dismissed the appeal on 4 April 2019.

The intended judicial review

7. On 10 April 2019, the applicant filed a Form 86 and an affirmation in HCAL 970/2019 to seek leave to bring judicial review against the Board’s decision. In his supporting affirmation, he reiterated the problems he faced in Vietnam without putting forward specific grounds against the Board’s decision.

The judge’s decision

8. DHCJ K W Lung considered 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 and the findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational. Therefore, the judge decided that the proposed judicial review has no realistic prospect of success and dismissed the leave application on 20 July 2023.

Grounds of intended appeal

9. The applicant stated his grounds of appeal in his supporting affirmation and written statement which may be summarised as follows:

(1)  The decision of the judge had been reached unfairly without allowing the applicant an opportunity to clarify his case and the situation in his country;
(2)  It was unsatisfactory for the court to rule that the applicant has no chance of success in reviewing the decisions of the Director and the Board;
(3)  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;
(4)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;
(5)  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;
(6)  The applicant was also wanted by the Vietnamese police for disturbing public order. He is worried that he would be brutally tortured by the Vietnamese police if caught;
(7)  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.

Analysis and disposition

10. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 20 July 2023 and the applicant was late by about three and a half months when he took out the summons at the court below on 22 December 2023, exclusive of the court’s summer vacation in August. In the supporting affirmation, the applicant asserted that the merits of his grounds of appeal constitute sufficient justification for the court to allow him to appeal out of time. However, he did not provide any explanation for the delay. As the applicant does not have any excusable explanation for the delay, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

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.

13. 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.

14. The judge was entitled to consider the applicant’s leave application on paper without a hearing pursuant to Order 53 Rule 3(3) of the Rules of the High Court, as the applicant did not request for an oral hearing in his Form 86. The applicant had the opportunity to make any clarification through his affirmation in support. There is no basis to complain that he has not been given the opportunity to clarify his case and there is nothing to show that the judge’s decision was made unfairly.

15. The rest of his grounds are also not viable. The applicant did not raise these grounds in his previous applications at the court below. An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[7].

16. In any event, these grounds are just groundless assertions. The applicant failed to provide sufficient particulars, elaboration or evidence in support. In particular, he failed to show 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.

17. For the above reasons, there is no prospect of success in the intended appeal. We decline to exercise our discretion to extend time to appeal and dismiss the summons filed on 15 March 2024.

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

The Applicant, acting in person

[1] [2023] HKCFI 1800

[2] [2024] HKCFI 612

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] 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).

[5] 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.

[6] 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.

[7] Re Qadir Sher[2018] HKCA 160 at §11

VU VAN TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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