VU THI THU TRANG v. TORTURE CLAIMS APPEAL BOARD

CACV 58 /2025, [2026] HKCA 468

On appeal from [2025] HKCFI 327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 58 OF 2025

(ON APPEAL FROM HCAL NO 1676 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 4 February 2025, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 10 February 2025.

2.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 19 December 2020 and was arrested by the police on 26 December 2020.  She lodged a non-refoulement claim on 1 March 2021.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor and his men as she was unable to repay her debt.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 27 April 2022, 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 out of time on 22 March 2024.  The Board dealt with her application for late filing of the Notice of Appeal/Petition on paper.  The applicant explained that she did not know there was a refusal decision and that she needed to file an appeal because she was detained.  She further submitted that being detained and not knowing how to speak English or Chinese made it very difficult for her to file an appeal.

5.  The Notice of Decision was served on the applicant via her duty lawyer with a blank copy of the Notice of Appeal/Petition.  The applicant was not detained in the period between 27 April 2022 and 12 May 2022 (the deadline of filing the Notice of Appeal/Petition). The Duty Lawyer Services confirmed that the content of the Notice of Decision, as well as the deadline and procedure of filing an appeal/petition, had been explained to the applicant by 11 May 2022.  The Board found no evidence to show that the applicant has exercised due diligence to file her Notice of Appeal/Petition within the prescribed period, and there are no circumstances which rendered it not possible to file it on time.  On 12 June 2024, the Board refused to grant extension of time for the applicant to file her Notice of Appeal/Petition.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 26 September 2024 to seek leave to apply for judicial review against the decision of the Board.  She stated the following grounds of her intended challenge:

(1)  the Director and the Adjudicator reached their decisions wrongly in assessing her non-refoulement claim as the decisions are not fair or reasonable as required by the Wednesbury test;

(2)  the Director failed to appreciate or place proper or sufficient weight or importance to the presence of state acquiescence in her case which led to an unfair outcome of rejecting her claim;

(3)  the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on the Country of Origin Information (“COI”)  but failed to take into account the applicant’s personal background and experience in assessing her claim;

(4)  the Director had listed the relevant COI which supported the applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and ruled otherwise against the applicant’s case;

(5)  the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the applicant’s explanations and unreasonably required her to respond to questions when she was not in a position to offer any response;

(6)  the Director failed to take into account the applicant’s argument that corruption and incompetency of the administration in the applicant’s country are still very serious;

(7)  the Adjudicator made a ruling to dismiss the applicant’s appeal based on findings upon which the Adjudicator ought to allow the appeal and thus the decision was irrational.

The judge’s decision

7.  The applicant was absent from the hearing scheduled before DHCJ Bruno Chan on 19 December 2024 so the judge dealt with the application on paper.

8.  The judge found that the applicant’s grounds are just bare and vague assertions without any necessary or relevant particulars, specifics or elaboration.  The judge held that these grounds are not reasonably arguable as the applicant did not clearly and properly identify any error of law or procedural unfairness in the process by the Board or in its decision.  The judge further found there is no justification to afford the applicant with non-refoulement protection in Hong Kong.  In addition, the judge found there is no error of law or procedural unfairness in either the decisions of the Director and the Board, nor any failure on their part to apply high standards of fairness.  Therefore, the judge was not satisfied that the applicant has any prospect of success in the proposed judicial review and dismissed the leave application on 4 February 2025.

Grounds of appeal

9.  The applicant stated the following grounds in her Notice of Appeal and affirmation:

(1)  If she returns to Vietnam, her life would be seriously threatened or she 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)  The suggestion of the Director on internal relocation is completely unfeasible as the applicant would face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with the 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;

(5)  The Director and the Board did not see the grounds to reserve their decisions.

10.  She submitted a written consent for the appeal to be disposed of on paper without an oral hearing.  Despite the directions given by the Registrar of Civil Appeals requiring the applicant to lodge written submissions on or before 24 February 2025, she did not lodge any written submissions.

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.  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.

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 judge has duly explained the reasons for rejecting the application in his decision.  As rightly decided by the judge, the Board correctly applied the relevant provisions under the Immigration Ordinance in refusing the applicant’s request for late filing of her appeal.  The applicant has not identified any error in the judge’s decision and did not have any valid ground to challenge it.

15.  Therefore, the appeal is devoid of merit and is dismissed accordingly.