RE NGUYEN VIET TRUNG

CACV 88/2025, [2026] HKCA 954

On appeal from [2025] HKCFI 354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 88 OF 2025

(ON APPEAL FROM HCAL 2386/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 18 February 2025[1] (“the Leave Decision”) refusing to grant leave for the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 9 August 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 7 January 2019 rejecting the applicant’s non-refoulement claim.

2.  The applicant’s background, the basis of his claim and the Board’s reasons in reaching the Board’s Decision have been set out by the Judge in the Leave Decision at [2]-[16], which will not be repeated.

3.  After considering the documents filed by the applicant as well as his oral submissions made at the hearing of the leave application, the Judge dismissed the application for the reasons stated at [3]-[7] and [10]‑[12] of the Leave Decision.

Appeal to this court

4.  By a Notice of Appeal dated 24 February 2025, the applicant stated inter alia that his life would be “seriously threatened” should he be refouled to Vietnam and that the “Immigration Department did not consider [his] human rights under the Basic Law [etc.]”.  He also claimed that internal relocation was not a realistic course for him to pursue. In his supporting affirmation dated the same, he stated (without providing particulars) that there is a “good ground of appeal” which was “not necessarily considered” by the Judge.

5.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge any written submissions.  He is thus deemed to have abandoned his right to rely on written submissions in the present appeal.     

6.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.  

Discussion

7.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

8.  The applicant has failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. The points advanced by the applicant are bare assertions unsupported by particulars or evidence.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

9.  In the present case, the Board concluded on the evidence that the problem faced by the applicant in his home country was private in nature and without any state involvement.  The Board took the view that the applicant, on the facts, would not face any of the proscribed risks upon return to Vietnam.  In any event, adequate state protection was available to minimise such risks, if any, and that internal relocation was a viable option.  These were factual findings open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [10]-[21].  We see no basis to interfere.

10.  The applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

11.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.