RE DINH KHAC KIEN

CACV 406/2026, [2026] HKCA 1168

On Appeal From [2026] HKCFI 1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 406 OF 2026

(ON APPEAL FROM HCAL NO 277 OF 2022)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 14 April 2026 ([2026] HKCFI 1995)  (“the Leave Decision”)  refusing to grant extension of time for, and dismissing his application for leave to apply for judicial review (“the Leave Application”)  against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 26 November 2021 (“the Board’s Decision”), whereby the Board dismissed his appeal against the decision of the Director of Immigration dated 8 June 2021, refusing his non-refoulement claim. 

2.  The applicant is a national of Vietnam.  The basis of his non-refoulement claim is, if refouled, he would be harmed or killed by his creditor for failure to repay his debts.  His background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision: see [1] - [9] of the Leave Decision.  The Judge has set out his reasons for refusing the Leave Application at [10] - [18] of the Leave Decision.  We will not repeat the details herein.

3.  By the Notice of Appeal filed on 21 April 2026, the applicant claimed:

“I do not agree with the decision of the Court of First Instance. I life is not safe in my country” (sic)

4.  In support of his appeal, the applicant also lodged his written submissions on 27 May 2026. In those submissions, he claimed that the Judge erred in failing to apply the principles of irrationality, procedural unfairness, and unreasonableness and that the Judge failed to analyse his claims properly.  The applicant alleged that his problems remain severe in his home country and his enemies are still looking for him and he will face hardship upon refoulement.  He further complained that the Board failed to give him sufficient chance to arrange relevant evidence and irrationally failed to analyse whether there was a consistent pattern of gross and mass violation of human rights in his country and whether state protection existed.

5.  Pursuant to the directions of the Registrar of Civil Appeals made on 21 April 2026 (“the Directions”), the hearing of his appeal was scheduled to be heard before this Court on 15 June 2026.  Paragraph 12 of the Directions also states that if the applicant fails to attend the oral hearing, he will be deemed to have waived his right to the requested oral hearing, and the court will proceed to consider the appeal on its merits on the basis of the materials before it.  The applicant confirmed in writing his receipt of the Directions on 21 April 2026.

6.  However, he failed to attend the oral hearing on 15 June 2026.  In the circumstances, pursuant to paragraph 12 of the Directions, we will proceed to consider and determine his appeal on paper.

DISCUSSION

7.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

8.  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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.  The Court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)].

9.  At the outset, save his claim that his life would be in danger upon refoulment, most of the applicant’s assertions are new grounds not raised before the Judge.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  On this basis alone, his appeal must be dismissed.

10.  In any event, we see no merit in his contentions. Nowhere in his Notice of Appeal did the applicant identify any error committed by the Judge with specific particulars.  His assertions against the Board are general and bare allegations unsupported by particulars or evidence.  In any event, the Board gave the applicant ample opportunities, both orally and in writing, to present his case[1]. Both the Board and the Judge had given detailed reasons for their respective decisions.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. The Judge had thoroughly analysed the applicant’s case and given detailed reasons for finding the applicant’s intended judicial review not reasonably arguable.  We see no error in the Leave Decision.

11.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is hereby dismissed.