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CACV 569/2025, [2026] HKCA 670
On Appeal From [2025] HKCFI 2805
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO.569 OF 2025
(ON APPEAL FROM HCAL NO. 3145 OF 2019)
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BETWEEN
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NGUYEN DUC THAO |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD /
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
____________________
| Before: |
Hon Anthony Chan JA and Ng J in Court |
| Date of Written Submissions: |
28 July 2025 |
| Date of Judgment: |
20 August 2026 |
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JUDGMENT
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Hon Anthony Chan JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order
(“Dismissal Order”) of Deputy High Court Judge K.W. Lung (“Judge”) dated 22 July 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 11 October 2019 (“Board’s Decision”) was
dismissed. By that decision, the Board upheld the decision of the Director of Immigration
(“Director”) to reject the Applicant’s non-refoulement claim.
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 has been summarised by the
Judge at [3] - [5] of his Judgment (“Judgment”). In gist, the Applicant claims that if he returns home he
will be killed or harmed by his creditor.
3. In [12] to [16] of the Judgment, the Judge gave reasons for
refusing the Leave Application.
4. By a Notice of Appeal filed on 1 August 2025, the Applicant
appeals against the Dismissal Order. The Applicant contends that :
“Appeal the refusal of the High Court about refused to granted leave to the applicant to apply
for judicial review of the Board’s Decision and dismissed my application.”
5. On 1 August 2025, the Applicant confirmed in writing his
consent to this appeal being disposed of on paper without an oral hearing. He lodged a “Supplemental
Submission in Response to Refusal of Leave to Apply for Judicial Review” on the same day.
6. In the written submissions, the Applicant contends that the
Board was wrong in characterising his claim as a private dispute, and in holding that state protection is
available and internal relocation will be viable. He further claims that he did not know of the need to
raise specific legal grounds in his Form 86 because he received no legal assistance. He asks this Court to
reconsider his claim in light of the nature and severity of threats he faces in Vietnam.
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, Country of Origin
information, risk of harm, state protection and viability of internal relocation are primarily within the
province of the Director and the Board. 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. The Applicant complains that he had no legal assistance in
bringing the Leave Application. This Court has repeatedly held that the high standard of fairness does not
prescribe an absolute right to free legal representation to a non-refoulement claimant at all stages of
proceedings: see Re Zunariyah [2018] HKCA 14 and Re Zahid Abbas [2018] HKCA 15. The Applicant had the benefit of legal representation in presenting his
case to the Director. On the materials before the Court, we are unable to see that the lack of legal
representation for the Leave Application has resulted in real prejudice to the Applicant.
10. As for the alleged errors in the Board’s Decision, they
are not errors made by the Judge. In any case, we see no substance in them, and they do not constitute any
viable grounds of appeal.
11. In the premises, this appeal is dismissed with no order as
to costs.
( Anthony Chan )
Justice of Appeal |
( Peter Ng )
Judge of the Court of First Instance |
The Applicant acting in person
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