DINH KHAC KIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 115 /2025, [2026] HKCA 469

On appeal from [2025] HKCFI 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 115 OF 2025

(ON APPEAL FROM HCAL NO 1377 OF 2024)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 28 February 2025, Deputy High Court Judge Reuden Lai refused to grant extension of time for the applicant to apply for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement claim[1]. The applicant filed a Notice of Appeal against the said decision on 10 March 2025.

2.  The applicant is a national of Vietnam.  He had previously been repatriated to Vietnam in 2013.  He entered Hong Kong illegally again in 2015 and surrendered to the Immigration Department on 15 April 2015.  He lodged his non-refoulement claim on the same day.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor and his men.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 27 October 2017, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

4.  The applicant filed an appeal against the Director’s decision with the Board on 6 November 2017.  The applicant was absent from the hearing scheduled before the Board on 24 January 2018.  The notice of the Board/Adjudicator’s intention to determine his appeal/petition in his absence was served on the applicant by post at his last reported address on the same day.  The applicant did not submit a written explanation of his failure to attend the hearing as required.  Therefore, the Board determined the appeal in the applicant’s absence.

5.  The Board held the applicant’s claim is not supported by any reliable evidence.  The Board also found the applicant’s assertion that he was running a Karaoke nightclub between 2010 to 2015 was contradicted by the immigration record which shows that he was arrested in Hong Kong in July 2013.  Taking the applicant’s evidence as a whole, the Board was not persuaded that the applicant had borrowed money from a moneylender, and that he had been assaulted or threatened by the moneylender or otherwise ill-treated in Vietnam.  The Board further assessed that reasonable state protection and internal relocation options are available to the applicant in Vietnam.  Therefore, the Board concluded that the applicant failed to demonstrate he is entitled to non-refoulement protection in Hong Kong and dismissed the appeal on 13 February 2018.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation out of time on 20 August 2024 to seek leave to apply for judicial review against the decision of the Board.  He put forward the following grounds in his supporting affirmation:

(1)  the decisions of the Director and the Board were unreasonable and unfair;

(2)  the Board failed to give him sufficient time and opportunity to arrange relevant evidence for the claim as well as the appeal;

(3)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case;

(4)  the Director failed to consider or give enough weight to country of origin information which supported the version that the police in his country would not be able to protect him and the corruption and incompetency of the administration in his country was still a very serious problem; and

(5)  the Director had failed to attain the high standard of fairness required by the Wednesbury test.

The judge’s decision

7.  The applicant attended the hearing on 21 January 2025 before DHCJ Reudan Lai.  The judge noted that the applicant was late for more than 6 years in filing the leave application and no explanation was provided for the inordinate delay.  The judge also found that the applicant’s grounds are just bare assertions without particulars and held there is no error of law, procedural unfairness or irrationality in the Board’s decision.  Therefore, the judge was not satisfied that the applicant has realistic prospect of success in the proposed judicial review and dismissed the application on 28 February 2025.

Grounds of appeal

8.  The applicant stated the following grounds in his notice of appeal:

(1)  If he returns to Vietnam, his life would be seriously threatened or he would 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;

(2)  It is completely unfeasible for him to change to live in another location as he would face many difficulties and obstacles;

(3)  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 the applicant’s new residence;

(4)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

9.  In his written submissions, he reiterated the problems that he faced in Vietnam and the procedural history of his claim.  He further submitted the following contentions:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  the adjudicator acted in a procedurally unfair manner without properly assessing his credibility;

(3)  the applicant is married to a holder of Hong Kong identity card who is currently pregnant with his child, so he requests the court to give him an opportunity to seek judicial review to enable him to take care of his wife and child.

10.  The applicant submitted a written consent for his appeal to be disposed of on paper without an oral hearing. 

Legal principles

11.  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.

12.  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.  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.

13.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

Analysis and disposition

14.  The applicant’s marriage to the holder of a Hong Kong identity card and the pregnancy of his wife do not constitute valid grounds of appeal.  The rest of his grounds and submissions are just bare assertions without sufficient particulars or evidence in support.  More importantly, he failed to identify any error in the judge’s decision.  Therefore, the appeal is devoid of merit and is dismissed.