RE DINH THI DANG

CACV 48/2025, [2025] HKCA 356

On appeal from [2025] HKCFI 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 48 OF 2025

(ON APPEAL FROM HCAL NO. 2371 OF 2019)

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JUDGMENT

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

Introduction

1.  This is the applicant’s appeal against the judgment of Deputy High Court Judge Lung (“the Judge”) given on 28 January 2025[1] dismissing her application for leave to apply for judicial review. The intended judicial review was in respect of the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) rejecting his non‑refoulement protection claim.

2.  The applicant had consented to the Court of Appeal disposing of the appeal on the papers without an oral hearing. Despite directions given by the Court, she has not lodged any written submission to support the appeal.

The applicant’s claim

3.  The applicant is a Vietnamese national aged 51. She entered Hong Kong illegally and was arrested on 2 April 2014. She subsequently raised a non-refoulement claim based on fear of being harmed or killed by her creditors due to her inability to repay the debt owed by her and her husband. Her claim was set out in details in [6] of the Director’s decision.

4.  In gist, the applicant claimed that she and her husband took out loans with a bank and also the creditors in connection with their fishing business. After their boat sank during a storm, they were unable to keep up with the repayments. Her husband went into hiding and the applicant has not heard from him since. Since July 2011, the creditors made repeated demands for repayment, vandalized the applicant’s home, assaulted the applicant on one occasion and on another occasion forcibly took away her youngest son and only released him after police intervention. She sent her two sons to stay with the relatives. In 2013, she left for Dongxing in Mainland China where she worked for a year. She later sneaked into Hong Kong as she worried the creditors could locate her due to the proximity of Dongxing to Vietnam.

The Director’s and the Board’s decisions

5.  By a Notice of Decision dated 19 September 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 23 May 2019. The applicant was represented by a lawyer assigned by the Duty Lawyer Service at the hearing. She gave evidence and answered questions from the Director’s lawyer and also the Board. By its decision given on 25 July 2019, the Board dismissed the appeal.

7.  In gist, the Board found there was no reliable evidence to support the applicant’s claim with respect to the existence of the fishing business, the loans and the various incidents. The Board also considered that even on the applicant’s case, the physical or mental harm inflicted by the creditors did not attain the required level of severity, and state protection is reasonably available, which would further reduce the risk of harm that the applicant might face. The Board concluded that the applicant failed to prove her entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

8.  The applicant filed a Form 86 and an affirmation on 15 August 2019 to seek leave to apply for judicial review against the decision of the Board. She did not provide and specific grounds to support the application.

9.  The Judge heard the leave application at a hearing on 23 December 2024. By his judgment dated 28 January 2025, he dismissed the application primarily on the basis that the applicant failed to raise any valid ground to challenge the Board’s decision and accordingly her intended judicial review application had no realistic prospect of success. failed to show she for the reasons he gave at [14] to [18] as follows:

The appeal

10.  By a notice of appeal dated 5 February 2025, the applicant appealed the Judge’s decision to this court.

11.  The grounds of appeal in the notice of appeal stated that: (1) the creditors and gangsters in Vietnam are cruel, violent and will readily kill people; the applicant will be tortured, beaten or killed by her creditors if she returns to Vietnam; (2) internal relocation is not feasible because the applicant will face many difficulties and obstacles, she will be disadvantaged in the labour market and he may not be able to adapt and make a living; (3) the gangsters will be able to track the applicant as they have a nationwide network and help from the corrupt government officials and police; and (4) the Director has disregarded the applicant’s human right.

12.  The applicant also filed an affirmation in which she stated that there was a good ground of appeal that was not being considered at the leave application stage. We will not consider this affirmation as no leave has been given for the applicant to file new evidence in this appeal. In any event, the affirmation only makes a vague assertion and has not even identified what is the ground of appeal referred to.

Our reasons for decision

13.  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. In sum, 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 scrutinizing 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 Country of Origin Information 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.

14.  We are of the view that the matters stated in the notice of appeal do not constitute viable grounds of appeal:

(1)  The Board had found there was no reliable evidence to support the material aspects of the applicant’s claim. The applicant has not provided any valid basis for challenging the Board’s findings. In the circumstances, her assertion that she will be harmed by the creditors and their people has no factual foundation and cannot stand. Likewise, the assertion that her human right has not been considered must also fail.

(2)  Importantly, the applicant has not put forward any specific ground for the intended judicial review. The applicant has also not identified any error in the Judge’s decision.

15.  For the above reasons, the applicant’s appeal is devoid of merits. Accordingly, we dismiss the appeal.