LE THI NUI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 98/2025, [2025] HKCA 453

On Appeal From [2025] HKCFI 353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 98 OF 2025

(ON APPEAL FROM HCAL NO 2379 OF 2019)

____________

____________

_________________

J U D G M E N T

_________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 18 February 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 9 August 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 18 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1974. According to immigration records, she first entered Hong Kong illegally in June 2010 with the intention to find employment and was repatriated back to Vietnam in July 2010. The applicant claimed to have entered Hong Kong illegally from Mainland China on 3 December 2016 and was subsequently arrested by the police on 7 December 2016. She conveyed her intention to lodge a claim for non-refoulement protection on 20 December 2016 and submitted her non-refoulement claim form dated 26 July 2017 to the Immigration Department. The applicant’s claim was made on the basis that if she returned to Vietnam, her creditor (Tran Ba Cuong) would harm or kill her due to her inability to repay her loan or, in the alternative, would traffick her to work as a prostitute in Mainland China in settlement of her debt. The factual background of the applicant’s claim was set out at [6] to [15] of the Board’s decision.

3.  By notice of decision dated 18 August 2017, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her. Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 13 June 2019, during which the applicant gave evidence and answered questions from the Board. At the oral hearing, the applicant gave oral evidence contradictory to her written evidence previously submitted in her claim by telling a totally different story. The Board found that the applicant’s evidence was not credible, because it found her claim to be “full of exaggeration, fabrication, discrepancies, inconsistencies, [and] bare assertions which fly in the face of common sense and logic”. The inconsistencies and implausibility included the timeline of when the applicant was operating her poultry farm and selling fruits, the details of the loan from her creditor (who was an illegal lender), the money she allegedly earned from her poultry business was much less than the amount she claimed to have paid in interest to the creditor punctually, and when and who was living at the house after her divorce. On the totality of the evidence, the Board did not accept that the applicant ran the poultry business, that she borrowed a large sum of money from her creditor, that she could pay the monthly interest, or that her claim of harm and ill treatment was true.

5.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to Vietnam. It found there was in fact no real risk of harm if the applicant returned to Vietnam, because it found the applicant’s claim simply to be a fabrication with no credence. Taken at its highest, the applicant’s claim was a private dispute with no state involvement. Her claims did not meet the minimum level of severity. Reasonable state protection was available to her and internal relocation was a viable option.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Vietnam. By its written decision dated 9 August 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 16 August 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation. In the latter, she simply stated that she disagreed with the Board’s decision and annexed a copy of its decision.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not appear at the oral hearing held on 8 January 2025. On 18 February 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [20] to [24] of the Judgment as follows:

“ 20. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

21. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

22. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.’

23. The applicant has raised no valid reason to challenge the Board’s Decision and there is no reason for this Court to interfere with the Board’s finding of the facts.

24. The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

Appeal to this Court

9.  On 3 March 2025, the applicant filed her Notice of Appeal against the Judge’s decision. Her stated grounds of appeal were, essentially, that she would be beaten or even killed by the creditors and gangsters in Vietnam, that the Director failed to appreciate or properly assess the viability of the applicant’s internal relocation within Vietnam, that the social network of gangsters could possibly locate her anywhere in Vietnam, and that the Director failed to consider her human rights.

10.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

11.  The applicant has not lodged any written submissions.

Discussion

12.  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, 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.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it did not accept any part of her claim to be credible and, even taken at its highest, the applicant’s claim was a private dispute without state involvement, where reasonable state protection was available and internal relocation was a viable option. 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 ground for saying that the Board’s decision should be impugned due to public law errors. As for the ground advanced relating to human rights, it consists of mere general and bald assertions regarding the decision of the Director without any particulars. It does not constitute a viable ground of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  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.

15.  The applicant’s appeal is accordingly dismissed.