HA THANH NGUYEN aliases TRAN MANH CUONG & HA ANH TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 319/2025, [2025] HKCA 940

On Appeal From [2025] HKCFI 1696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 319 OF 2025

(ON APPEAL FROM HCAL NO 3820 OF 2019)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Martin Wong (“Judge”)  on 13 May 2025[1] dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 5 June 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“Director”)  dated 1 September 2016 and 31 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1975.  In 2007, he first entered Hong Kong illegally under a false name (Tran Mahn Cuong)  with possession of a false document and was eventually repatriated in the same year after serving his sentence.  In 2010, the applicant applied for a visa for entry into Hong Kong but it was rejected, and he made a failed attempt to enter Hong Kong thereafter.  In 2012, the applicant entered Hong Kong as a visitor under a different name (Ha Anh Tuan)  and subsequently applied for multiple extensions of stay. On 31 March 2014, he submitted a written signification indicating his intention to lodge a non-refoulement claim in Hong Kong for the first time.  The applicant’s claim was made on the basis that if he returned to Vietnam, his former coal mine business partner (Ah Hung)  would harm or kill him for not compensating his business loss.  The factual background of the applicant’s claim was set out at [11] to [24] of the Board’s decision.

3.  Simultaneously, in 2012, the applicant’s wife (who is a Hong Kong resident)  applied to the Immigration Department for a dependant visa for the applicant.  The applicant and his wife were married on 13 April 2012 and their daughter was born in Hong Kong on 1 November 2010.

4.  By notice of decision dated 1 September 2016, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] and torture risk.[4]

5.  On the initiative of the Director, the applicant was invited to submit additional information in relation to his claim in light of BOR 2 risk[5] by way of letter dated 13 July 2017.  The Director did not receive any reply from the applicant by the deadline and proceeded to assess his claim.  By further notice of decision dated 31 July 2017, the Director assessed the applicant’s claim in relation to the remaining applicable risk of BOR2 and determined it against him as well.

6.  The applicant appealed to the Board against the Director’s decision dated 1 September 2016.  In light of the timing of the appeal and the further decision of the Director, the Board considered the appeal of both the decisions of the Director dated 1 September 2016 and 31 July 2017.  An oral hearing was held on 4 April 2018, but the applicant did not attend.  By way of letter dated 4 April 2018, the Secretariat of the Board subsequently invited the applicant to provide a written explanation within 7 days with regard to his failure to attend the oral hearing and informed him that the Board would proceed to determine his appeal/petition if he failed to provide an explanation or it was not satisfied with the explanation offered.  As at the date of the Board’s decision, the Board did not receive any reply whatsoever from the applicant.  Therefore, the Board proceeded to determine the applicant’s appeal/petition despite the applicant’s failure to attend the oral hearing.

7.  The Board found the applicant’s claim to suffer from material inconsistencies, especially since the applicant was not present at the hearing to elaborate or explain various anomalies in his story.  It found the applicant’s claim to be difficult to accept and not credible, because the applicant was not present to clarify, inter alia, his choice of large scale investment in the coal mine business despite his perceived lack of expertise, his choice of business partner who had triad background, how a “4 square metres” coal mine could accommodate 10-15 employees together with large machineries, the circumstances of Ah Hung attributing fault to the applicant when the business operation abruptly ended, and the details of the alleged assaults, gun incident and death note.  The Board further found that the applicant’s delay in seeking assistance from the Hong Kong authorities for nearly two years further weakened the credibility of his evidence.

8.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Vietnam.  It found there was in fact no real risk of harm if the applicant returned to Vietnam, because the perceived threats could not have reached a minimum level of severity in view of the inconsistencies of his story, and that in any event reasonable state protection would be available to the applicant and relocation to Hanoi or Ho Chi Minh City would be a viable option for the applicant.

9.  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 5 June 2018, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decisions dated 1 September 2016 and 31 July 2017.

The Judge’s decision in the court below

10.  More than one year beyond the 3-month time limit for bringing judicial review proceedings as prescribed by Order 53, rule 4(1)  of the Rules of the High Court (Cap. 4A), on 23 December 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.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply repeated the basis of his claim for non-refoulement protection and annexed the Board’s decision.

11.  The Judge considered the application on the basis of the documents and the submissions of the applicant at the oral hearing on 12 March 2025.  On 13 May 2025, the Judge issued his decision, dismissing the application for leave to apply for judicial review.  The reasons were set out in [5] to [12] of the Form CALL-1 as follows:

“ 5. In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers. This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007)  10 HKCFAR 676).

6. In his affirmation filed in support of the Form 86, the Applicant only repeated his factual basis for claiming protection and did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision.

7. At the hearing, he reiterated the alleged fear for life and his family situation in Hong Kong, which were all before and considered by the TCAB [1].

8. As indeed, as can be seen from the TCAB Decision, the Applicant failed to attend the oral hearing before the TCAB [6] and did not respond at all to the TCAB’s invitation for him to explain his absence [7-8]. The TCAB then decided to proceed with the Applicant’s appeal on paper.

9. The TCAB was presented all the written evidence available [10-24] and carefully considered the same [26-44].

10. The TCAB then analysed all the evidence in the context of the four applicable grounds under the USM, applying the correct legal principles in each instances, and came to the conclusion that none of them was made out [46-64].

11. As such, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

12.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.”

Appeal to this Court

12.  On 21 May 2025, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he would be beaten or even killed by his former business partner if he returned, that the Director failed to appreciate or properly assess the viability of the applicant’s internal relocation within Vietnam, and that the Director failed to consider his human rights. 

13.  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.

14.  The applicant has not lodged any written submissions.

Discussion

15.  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’s decision, 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.

16.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the perceived threats could not have reached a minimum level of severity, reasonable state protection would be available, and relocation to Hanoi or Ho Chi Minh City would be a viable option for the applicant.  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 public law error in relation to the Board’s decision.  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.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

17.  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.

18.  The applicant’s appeal is accordingly dismissed.

19.  This decision concerns of course only the applicant’s claim for non-refoulement protection, and does not in any way deal with his application to the Director for permission to stay in Hong Kong as the spouse of a Hong Kong permanent resident.