NGUYEN VAN TUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 952/2025, [2026] HKCA 39

On Appeal From [2025] HKCFI 4873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.952 OF 2025

(ON APPEAL FROM HCAL NO. 1067 OF 2025)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K.W. Lung (“Judge”)  dated 22 October 2025 by which his application for leave to apply for judicial review (“Leave Application”)  against the decision of the Torture Claims Appeal Board (“Board”)  dated 17 July 2024 (“Board’s Decision”)  was dismissed. By that decision, the Board upheld the decision of the Director of Immigration (“Director”)  whereby the Applicant’s non-refoulement claim was rejected.

2.  The Applicant is a national of Vietnam.  The basis of his non-refoulement claim had been set out in detail in the Board’s Decision, which may be viewed online via the hyperlink contained in [5] of the CALL-1 Form.  In gist, the Applicant claims that he would be harmed or killed by his creditor if he returns to his country.

3.  In [13] to [17] of the CALL-1 Form, the Judge gave detailed reasons for refusing the Leave Application.

4.  By a Notice of Appeal filed on 31 October 2025, the Applicant appeals against the Judge’s decision.  The Applicant contends that: (1)  he would be killed or harmed by his creditor; (2)  the Director’s suggestion of internal relocation is completely unfeasible; and (3)  the Director did not consider his human rights.

5.  In his Skeleton Arguments lodged on 19 December 2025, the Applicant submits that: (1)  the Board took into account irrelevant matters, namely, the Applicant’s creditor would want to get repaid rather than harming him; (2)  the Board failed to apply high standards of fairness in coming to the conclusion that the creditor had nothing to do with the State; (3)  the Board failed to exercise independent assessment by relying on e-newspaper and Country of Origin Information (“COI”); (4)  the Board’s finding that the Applicant had not adduced any sufficient evidence to show that his physical injury and mental suffering had met the minimum level of severity was irrational; and (5)  the Board failed to take relevant matters into consideration, namely, the undue hardship to the Applicant in the event of relocation to other parts of Vietnam.

6.  The Applicant had nothing further to add at the hearing. 

7.  The general approach of this Court in dealing with appeals in non-refoulement cases has been set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court 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.  This Court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

8.  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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022 at [13].

9.  Ground (1)  contained in the Notice of Appeal is a bare assertion.  Grounds (2)  and (3)  are vague and unparticularised allegations directed towards the Director, and not against the decision of the Judge.  These are not viable grounds of appeal.

10.  With the exception of ground (3), the grounds advanced in the skeleton arguments were never raised in the Applicant’s Form 86 or his supporting affirmation.  It is impermissible for the Applicant to raise fact-sensitive grounds for the first time on appeal. 

11.  In respect of ground (3), evaluation of COI was a matter for the Board.  The COI was carefully reviewed by the Board (Board’s Decision, [96]-[113])  before coming to the finding that “reasonable state protection would be available to the [Applicant] if he were to return to Vietnam” ([114]).  We see no valid criticism in this regard.  Further, it should be pointed out that the Board found that “the account given by the [Applicant] is implausible and unbelievable”.  Findings of facts are matters for the Board. 

12.  In the premises, there is no merit in this appeal.  It is dismissed with no order as to costs.

The Applicant appeared in person