TO VAN KIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 611/2025, [2026] HKCA 151

On appeal from [2025] HKCFI 2463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 611 OF 2025

(ON APPEAL FROM HCAL NO. 2776 OF 2019)

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J U D G M E N T

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The Court:

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Reuden Lai (“the Judge”) given in the Form CALL-1 and the Order dated 11 June 2025[1] refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (the “Board”) dated 23 August 2019 (the “Board’s Decision”) whereby the Board dismissed his appeal against the decision of the Director of Immigration (the “Director”) dated 17 May 2019 (the “Director’s Decision”) rejecting his non‑refoulement protection claim. 

The applicant’s claim and the Judge’s decision

2.  The applicant is a national of Vietnam. In his non-refoulement claim form filed with the Immigration Department, he lodged a claim on the basis that, if refouled, he would be harmed or killed by his creditor and the Vietnamese police would arrest and frame him with false charges if he were returned to Vietnam because he was unable to repay his Loan. The applicant’s non-refoulement claim was rejected by the Director, and his appeal against it was rejected by the Board on 23 August 2019. Details of the applicant’s claim and the Board’s reasons for rejecting the applicant’s appeal can be found in the Board’s Decision.

3.  The applicant’s application for leave to apply for judicial review was refused by the Judge and details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1.

The appeal

4.  On 12 August 2025, the Judge granted leave to the applicant to file a notice of appeal against the Judge’s decision out of time.

5.  By a notice of appeal filed on 15 August 2025, the applicant sought to appeal the Judge’s decision to this court. The applicant’s grounds of appeal can be summarised as follows :-

(1)  The applicant will face the risk of being harmed or killed by his creditor if he is returned to Vietnam.

(2)  Internal relocation as suggested by the Director is completely not feasible.

(3)  The Director did not consider his human rights under the “Basic Law, Hong Kong Human Rights and Democracy Act, International Covenant on Civil and Political Rights and Internation Covenant on Economic, Social and Cultural Rights.

6.  In the applicant’s affirmation dated 15 August 2025 he stated that :-

“1. I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review.

2. Additionally, I was informed that the Director of Immigration and Torture Claims Appeal Board / Non-Refoulement Claims Petition Office did not see the grounds to reserve their decisions.

3. I humbly request the Court to exercise its discretion to allow me to appeal.”

7.  The appeal was scheduled to be heard on 27 January 2026. However, the applicant has failed to lodge any skeleton argument in support of his appeal on or before 23 December 2025 in accordance with the directions given by the Registrar of Civil Appeals dated 10 December 2025. Accordingly, the applicant is deemed to have waived his right to have an oral hearing of the appeal, and elected to have the appeal disposed of on paper. The applicant was informed of the same by the court’s letter.

8.  The applicant lodged his skeleton arguments on 2 January 2026, which were only directed against the Board, not the Judge. His arguments can be summarised as follows:

(1)  the Board had taken irrelevant matters into consideration and failed to take relevant matters into consideration; 

(2)  the Board had failed to apply a high standard of fairness;

(3)  the Board had failed to exercise independent assessment;

(4)  the Board’s decision was irrational.

Our reasons for decision

9.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is 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, the Court of Appeal 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. The Court of Appeal’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)).

10.  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 Board and the Director. The court below 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.

11.  In the present case, no such error of law or procedural unfairness or irrationality in the decision of the Board was observed by the Judge or was pointed out by the applicant apart from the bare assertions in his grounds of appeal.

12.  It is incumbent on the applicant to point out the Judge’s errors with sufficient particulars. We are of the view that the matters set out in the notice of appeal or his skeleton arguments failed to identify any error on the part of the Judge. They do not constitute any viable grounds of appeal and lack substance. We see no basis to interfere with the Judge’s decision.

13.  For the above reasons, the applicant’s appeal is devoid of merits. We dismiss it accordingly.