Case Detail

VU TRUONG SON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2025] HKCA 714-EN-2025-08-01

VU TRUONG SON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CAMP 59 /2024, [2025] HKCA 714

On appeal from [2023] HKCFI 3066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 59 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1006 OF 2021)

________________________

BETWEEN
	Vu Truong Son	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 1077). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 12 December 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 18 March 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 and affirmation:

(1)  It is unsatisfactory that the Court of Appeal ruled that he had no chance of success in reviewing the decisions of the Torture Claims Appeal Board and the Director of Immigration;
(2)  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 people;
(3)  It is completely unfeasible for him to change to live in another location as he will face many difficulties and obstacles;
(4)  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 his new residence;
(5)  The Director of Immigration did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights;
(6)  The court has reached its decision unfairly without allowing him an opportunity to clarify his case and the situation in his country.

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 about 2.5 months in filing the Notice of Motion. The delay is substantial. He did not provide any reason for his delay. He stated that he believes the merits of his grounds of appeal constitute sufficient justification for the court to exercise its discretion in allowing the appeal to be brought out of time. We do not see any good ground to grant extension of time for the applicant to file his Notice of Motion.

7. In any event, the applicant’s grounds were not raised in the leave application before the Court of First Instance or in his previous application before the Court of Appeal. It is not open to him to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings. We noted that the applicant raised a complaint about the lack of opportunity to clarify his case. Pursuant to Order 53 rule 3(3) of the Rules of the High Court (Cap 4A), the judge was entitled to determine the leave application on paper without a hearing as the applicant has not requested for a hearing in his notice of application, and the judge has considered the supporting affirmation filed by the applicant. The Court of Appeal is also entitled to determine the application without a hearing on the basis of written submissions only pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court. The rest of his grounds are just bare assertions which are not supported by particulars or evidence.

8. Furthermore, the applicant 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).

9. For the above reasons, we dismiss the Notice of Motion filed on 4 March 2025.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

CAMP 59 /2024, [2024] HKCA 1077

On appeal from [2023] HKCFI 3066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 59 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1006 OF 2021)

________________________

BETWEEN

	Vu Truong Son	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 12 December 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 3 January 2024, 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 20 March 2024[2].

3. On 28 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 25 December 2019. On 25 August 2020, he surrendered to the Immigration Department and lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor and the creditor’s husband.

The decisions of the Director and the Board

5. By a Notice of Decision dated 25 January 2021, 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 11 May 2021. The Board was not convinced that the applicant came to Hong Kong because of the alleged threat from the creditor or that he had suffered any physical or mental pain and suffering as alleged, in view of serious inconsistencies and implausibility in his evidence, as well as the lack of supporting evidence. The Board also found the applicant has never suffered injury that has reached the requisite minimum level of severity. The Board further held there is no evidence to show any harm or threat of harm instigated by state agent. In addition, the Board held that state protection and internal relocation options are 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 3 June 2021.

The intended judicial review

7. On 16 July 2021, the applicant filed a Form 86 and an affirmation in HCAL 1006/2021 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 that the applicant does not have any valid ground to challenge the Board’s decision. Therefore, the judge decided that the proposed judicial review has no realistic prospect of success and dismissed the leave application on 12 December 2023.

Grounds of intended appeal

9. The applicant stated in his supporting affirmation that he is unrepresented and did not have access to any legal advice, but did not put forward specific grounds of appeal in the present application.

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 12 December 2023 and the applicant was late by about one week when he took out the summons at the court below on 3 January 2024. The applicant did not provide any explanation for the delay.

12. 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.

13. 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.

14. 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.

15. In the present application, the applicant 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.

16. For the above reasons, there is no prospect of success in the intended appeal. We refuse to allow the applicant to appeal against the decision of 12 December 2023 out of time and dismiss the summons filed on 28 March 2024.

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

The Applicant, acting in person

[1] [2023] HKCFI 3066

[2] [2024] HKCFI 701

[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.