RE NGUYEN THANH THINH

CACV 265 /2024, [2025] HKCA 88

On appeal from [2024] HKCFI 1567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 265 OF 2024

(ON APPEAL FROM HCAL NO. 1518 OF 2019)

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J U D G M E N T

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

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 27 June 2024[1] dismissing her application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal against the decision of the Director of Immigration (“the Director”)  and rejecting her non-refoulement protection claim. 

2.  The applicant has consented to the appeal being determined by the Court of Appeal on the papers. 

3.  Despite directions given by the Registrar of Civil Appeals, the applicant has not lodged any written submission to support her appeal.  

The applicant’s claim

4.  The applicant is a Vietnamese national aged 40.  She entered Hong Kong illegally and surrendered to the police on 27 July 2015.  She subsequently raised a non-refoulement claim based on fear of being harmed or killed by a money lender (“Lien”)  due to her inability to repay her debt.  Her claim was set out in details by the Director in [6] of his decision and summarised by the Board in [9] to [21] of its decision. 

5.  In gist, the applicant claimed that she borrowed a loan from Lien in 2013 for the fish farm operated by her husband.  In 2014, the business suffered a loss and she was unable to continue making repayment.  Between December 2014 and April 2015, there were three debt collection incidents.  On the second occasion, Lien and his men damages some of the items in the applicant’s home. During the third occasion, Lien raped her, threatened to kill her if she did not repay the loan, and suggested if she agreed to continue having sexual relations with him the repayment could be deferred.  Acting on her mother’s advice the applicant left her children with her and fled to Hong Kong. After she came to Hong Kong, she ran into her husband in December 2015 and learned that he had also fled Vietnam to avoid his debtor.  

The decisions of the Director and the Board

6.  By a Notice of Decision dated 23 January 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]. 

7.  The applicant’s appeal against the Director’s decision was heard before the Board on 13 December 2018.  By a decision given on 31 May 2019, the Board dismissed the appeal.  In gist, the Board doubted the truthfulness of the applicant’s account of the rape incident and also the assertion that Lien has been looking for her and uttering threats after she left Vietnam.  The Board also considered that the rape and sexual advances made by Lien did not amount to torture although they might have been unwelcomed by the applicant in that she “did not claim that she had suffered physical injury of any serious degree”, “her suffering, if any, was more of a psychological nature”, between 2015 and 2017 Lien only came asking about the applicant but did not threaten her mother, and even if the rape did happen, “one rape incident in the circumstances described by the [applicant] did not fall within the definition of torture”[6]. The Board further had regard to the available country of origin information and found that state protection and internal relocation options were reasonably available, which would reduce or remove any risk of harm that the applicant might face.  The Board concluded that the applicant failed to show she was entitled to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

8.  The applicant filed a Form 86 and an affirmation on 4 June 2019 to seek leave to apply for judicial review against the decision of the Board.  Other than stating in the supporting affirmation that her life was in danger as she could not repay her debt, the applicant did not provide ant grounds for seeking relief. 

9.  The Judge dealt with the leave application on paper.  By a Form CALL-1 dated 27 June 2024, he dismissed the application holding that the intended judicial review had no prospect of success.  His analysis and reasons were set out in details in [18] to [23] as follows: 

“18. 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).

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

20. 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.”

21. The Board has given the reasons above for its conclusion that the applicant will not be subjected to any of the applicable risks if she returns to Vietnam. At paragraph 54 of the Board’s Decision, the Board said:

“54. … … She was basically unable to show any factual basis for her alleged fear for her life or any ill-treatment to the required degree.”

22. The applicant has raised no valid ground to challenge the Board’s Decision. There is no reasonable basis for this Court to interfere with the Board’s finding of the facts.

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

The appeal

10.  By a notice of appeal filed on 3 July 2024, the applicant sought to appeal the Judge’s decision to this court.  The grounds of appeal stated that (1)  the applicant would be in danger or might die if she returned to Vietnam because the gangsters there were cruel and violent, had no regard for the law and would readily kill people; (2)  internal relocation was not a viable option; and (3)  the Director did not consider the applicant’s human rights under the Basic Law and various laws and international covenants.

11.  The applicant also filed an affirmation in which she asserted that there is a good ground of appeal which has not been considered in her leave application.  We will not consider this affirmation as no leave has been sought or given to the applicant to adduce new evidence on appeal.  In any event, what was stated in the affirmation is a mere assertion without any supporting details or elaborations.  

Our reasons for decision

12.  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. 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), who are the primary decision makers.  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.  Further, an appeal to the Court of Appeal is not an avenue for the applicant to re-argue the case.  The Court of Appeal will not interfere with the first instance decision unless it is shown that the first instance judge has erred.

13.  We are of the view that the matters set out in the notice of appeal do not amount to any viable ground of appeal.  Importantly, the applicant has not pointed to any error in the Judge’s decision.  Secondly, while we have reservations on the Board’s view that the rape incident claimed by the applicant could not amount to torture and the reasons it gave[7], we note that the Board had doubted the credibility and truth of the applicant’s evidence and case for the analysis it gave[8]. Both before the Judge and in this appeal, the applicant has not identified any error in the Board’s assessment of the evidence and finding of facts or any irrationality or procedural irregularity in the Board’s decision.  In light of the Board’s findings, the applicant’s assertions that she will be in danger if she returns to Vietnam has no supporting foundation.  The Judge’s decision to dismiss the application for leave to apply for judicial review cannot be faulted.  

14.  By an undated letter received by the Court on 30 December 2024, the applicant informs the Court that she wishes to cancel her claim and does not want to continue her non-refoulement protection claim as she is no longer at risk in her home country.  

15.  In the circumstances and for the reasons given above, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.