CAO THI THUY LIEN v. TORTURE CLAIMS APPEAL BOARD

CACV 456/2026, [2026] HKCA 1350

On Appeal From [2026] HKCFI 2429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 456 OF 2026

(ON APPEAL FROM HCAL NO 1961 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Michael Wong (“Judge”) on 29 April 2026 dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 31 August 2020.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 4 June 2020 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1988 and her claim was made on the basis that if she returned to Vietnam, her creditor would harm or kill her due to her inability to repay a loan.  Details of the applicant’s background, the basis of her claim and arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal are all set out in the Board’s decision: see [1] of the Form CALL-1.  The Judge has set out the grounds advanced by the applicant in support of the application and his reasons for refusing the application: see [10] – [21] of the Form CALL-1.

Appeal to this Court

3.  On 6 May 2026, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that the Judge did not scrutinize the claim properly, that her claim was rejected by the Judge and the Board despite the severity of her problem, and that she could not return to her hometown due to the fear of being hunted down and that would affect the lives of her parents and her children.

4.  The applicant has lodged a skeleton argument in which she stated that the Judge’s decision was unreasonable and irrational, that the Judge failed to find procedural unfairness where the Director failed to give reasons to justify his decision, that the Judge reviewed the matter lightly, that the Judge did not analyze her claim properly, that the Judge did not accept her claims as they had been refused by the Board and the Director, that the Board did not allow sufficient opportunity for her to arrange relevant evidence, that the Director relied on sources of news which were not officially recognized or were simply hearsay, that the Board failed to make a finding on whether there was a consistent pattern of gross and mass violation of human rights in her home country, and that the Board failed to assess whether state protection existed in her home country.  She further stated that she would be killed if she returned to her home country and that her enemies were still looking for her.

5.  At the hearing, the applicant said that she had nothing further to add.

Discussion

6.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

7.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it was only a loan dispute between the applicant and the creditor without state involvement, the applicant had never been inflicted with any injury by her creditor or his associates and it was unlikely she would be inflicted with any severe injury by them upon refoulement; state protection would be available; and internal relocation to other parts of Vietnam, like Hanoi, Ho Chi Minh City and Da Nang, were viable options for the applicant.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

8.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

9.  The applicant’s appeal is accordingly dismissed.