CACV 356/2025, [2025] HKCA 799
On Appeal From [2025] HKCFI 2144
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 356 OF 2025
(ON APPEAL FROM HCAL NO 2751 OF 2019)
________________________
BETWEEN |
| | NGUYEN HUU SON | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
_____________________
| Before: | Hon Au and Chow JJA in Court |
| Date of Written Submissions: | 6 June 2025 |
| Date of Judgment: | 12 September 2025 |
______________
J U D G M E N T
______________
Hon Chow JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order of Deputy High Court Judge Reuden Lai (“the Judge”) dated 22 May 2025 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 13 September 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 May 2019.
BACKGROUND
2. The Applicant is a national of Vietnam. He claimed that he entered Hong Kong illegally on 10 June 2016. On 30 June 2016, he surrendered himself to the Immigration Department. By way of written significations dated 29 May and 30 June 2017, he lodged a non-refoulement claim. He later wrote to the Immigration Department to withdraw his claim on 26 July 2018. However, he raised his non-refoulement claim (“the Claim”) again by letters dated 26 January and 5 February 2019[1]. The Claim was made on the basis that, if refouled, he would be harmed or killed by his parents’ creditor (Thanh) because of their failure to repay a loan. Details of the Claim have been summarised by the Judge at §§2-9 of the CALL-1 Form.
3. By a Notice of Decision dated 7 May 2019 (“the Director’s Decision”), the Director dismissed the Claim with reference to all applicable risks: risk of torture[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].
4. The Applicant appealed the Director’s Decision to the Board. On 13 September 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§21-23 of the CALL-1 Form, as follows:
“[21] In §§21-60 of the Board’s Decision, the Board discussed the Applicant’s evidence given at the hearing before the Board in some details. The Board found substantial contradiction and inconsistencies between the Applicant’s evidence provided to the Board and that provided to the Director. The Board did not accept that Parents had borrowed the Loan or that the Applicant had been assaulted or threatened by the Lender. The Board found the Applicant’s evidence incredible and thus there was no evidence in support of the Claim.
[22] For reasons set out in §§64-81 of the Board’s Decision, the Board was of the further view that even accepting the Applicant’s evidence given to the Director, the Applicant still failed to establish his claim under any of the applicable grounds under the [Unified Screening Mechanism (‘USM’)].
[23] After considering the relevant country of origin information (‘COI’), the Board found that reasonable state protection would be available to the Applicant if he were returned to Vietnam and that internal relocation to other places in Vietnam was viable for the Applicant. (§§82-91 of the Board’s Decision)”
THE JUDGE’S DECISION
5. On 19 September 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86 or in his supporting affirmation of the same date.
6. On 22 May 2025, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:
“[25] Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.
[26] The Board found the Applicant’s various accounts of event not credible and rejected them as untruthful. The Board did not accept that Parents had borrowed the Loan or the Applicant and Brother had been ill-treated or threatened as alleged.
[27] The Board further found that even the Applicant’s own evidence did not show that the Lender intended to inflict serious harm on him. The alleged ill-treatment did not attain a minimum level of severity and the Vietnamese government was not involved. The Board assessed the risk of the Applicant being harmed or killed by the Lender or his underlings upon the Applicant’s return to Vietnam to be low. (§§64-69 of the Board’s Decision).
[28] In §§64-81 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM.
[29] The Board found that there was no evidence showing that the Applicant would face the proscribed risks of harm if he were to return to Vietnam. The alleged ill-treatment did not attain a minimum level of severity. There was no evidence to show that the Applicant would be arbitrarily deprived of his life in violation of BOR 2 if he were refouled to Vietnam. The dispute with the Lender was not one of the subject matters referred to in the Refugees Convention. The Board also found that reasonably sufficient state protection would be available to the Applicant in Vietnam and internal relocation viable for him.
[30] It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.
Conclusion
[31] In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.”
THIS APPEAL
7. In his Notice of Appeal filed on 2 June 2025, the Applicant states that his life will be seriously threatened, and he will probably die if he returns to Vietnam, because most creditors and gangsters in Vietnam are cruel and violent, and they disregard the law and are willing to kill people to satisfy their anger and ferocity. He disagrees with the Director’s assessment that he could move to another location in Vietnam to avoid the creditor for various reasons, and alleges that the Immigration Department did not consider his human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.
8. In his affirmation of the same date, the Applicant states that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, but he fails to identify what that ground might be. He also states that he has been informed that the Director and the Board “did not see the grounds to reverse their decisions”, without giving any further explanation or particulars.
9. On 2 June 2025, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.
10. In his written submissions lodged on 6 June 2025, the Applicant makes generic submissions on some general principles of law relating to non-refoulement claims, but fails to explain how they are applicable to his case. He asserts that the Board acted in a procedurally unfair manner without properly assessing his credibility. He also asserts that he has a daughter in Hong Kong, and they will face danger or hardship if they return to Vietnam because he will not be able to protect his daughter from the creditor, or earn money to support himself and his daughter there.
DISCUSSION
11. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524, at §14(6)).
12. Further, the assessment of evidence, COI, 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: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
13. The matters raised in the Applicant’s Notice of Appeal and written submissions are directed at the decisions of the Director and/or the Board, and are all general allegations without particulars. They do not constitute any valid grounds of appeal against the Judge’s decision. The Applicant’s assertion relating to his daughter’s position is not substantiated by any evidence, and even if true, cannot be a ground for non-refoulement protection for him.
14. The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.
15. The Applicant’s appeal has no merit, and is dismissed.
16. This judgment is written in English although the respective decisions by the Director and the Board were written in Chinese, because the Applicant’s Notice of Appeal and affirmation are both written in English. If required, the Applicant may make an appointment with the clerk to this Court for an oral interpretation of this judgment in the Applicant’s preferred language at a mutually convenient time in the Court’s premises.
(Thomas Au)
Justice of Appeal | (Anderson Chow)
Justice of Appeal |
The Applicant, acting in person
[1] See §20(iv)-(vii) of the Board’s Decision.
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the 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.