RE HOANG QUOC VIET

CACV 326/2024 , [2025] HKCA 515

On appeal from [2024] HKCFI 1917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 326 OF 2024

(ON APPEAL FROM HCAL NO. 1642 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 24 July 2024 ([2024] HKCFI 1917)  refusing to give him leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing his appeal against the decision of the Director of Immigration (“the Director”)  which rejected 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, he did not lodge any written submission to support the appeal.  

3.  The applicant is a Vietnamese national aged 40.  In December 2012 he was arrested by the police after entering Hong Kong illegally and was repatriated to Vietnam on 3 January 2013.  In May 2013 he again entered Hong Kong illegally and was arrested by the police.  A removal order was made against him.  He subsequently raised a non-refoulement claim based on a fear of being harmed or killed by his creditor due to his inability to repay his debt.  His claim was set out in details in [7] of the Director’s decision.  In gist, the applicant claimed that in 2011 he obtained a loan from a moneylender in connection with his business. He was unable to repay the loan.  On three occasions, the moneylender and his followers went to his home to demand repayment, during which they threatened to harm him and assaulted him, including stabbing him with a knife.  Fearing for his personal safety, the applicant fled home and sneaked into Hong Kong in 2012. After being repatriated, the applicant remained in fear and went into hiding and eventually sneaked into Hong Kong again.  

4.  By a Notice of Decision dated 17 August 2017 the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. 

5.  The Board heard the applicant’s appeal at an oral hearing on 4 April 2019, and by a decision given on 31 May 2019 dismissed the appeal.  In gist, the Board rejected the applicant’s evidence as being incredible having regard to the numerous material inconsistencies and the inherent implausibility.  The Board found there was no evidence to support the applicant’s claimed fear or that there would any risk of harm to the applicant if he were to return to Vietnam. The Board concluded that the applicant failed to establish his entitlement to non-refoulement protection under any of the applicable grounds.  

6.  The applicant filed a Form 86 and an affirmation on 17 June 2019 to seek leave to apply for judicial review against the decision of the Board.  He did not provide any grounds for seeking relief.

7.  The Judge dealt with the leave application on paper.   By a Form CALL-1 dated 24 July 2024, the Judge dismissed the application, finding that the intended judicial review has no realistic prospect of success as the applicant had raise no valid reason to challenge the Board’s finding of fact.

8.  By a notice of appeal dated 7 August 2024, the applicant appealed the Judge’s decision to this court. 

9.  The grounds of appeal in the notice of appeal stated that:

“the gravity of my circumstances have noted [sic] been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

10.  The applicant also filed an affirmation which 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 identified what is the ground of appeal referred to.

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.  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.

12.  We are of the view that the appeal is unarguable.  Critically, the matters stated in the notice of appeal are not directed at the Judge’s decision.  The applicant has not identified any error in the Judge’s reasoning and decision.  For this reason alone, the appeal falls to be dismissed. Further, assessment of credibility and risks is a matter for the Board.  The applicant has not provided any particulars to substantiate his complaint that the gravity of his situation had not been considered or to otherwise challenge the Board’s assessments and findings. 

13.  On 22 May 2025, the applicant filed a Request for Dismissal of Appeal, requesting that this appeal be dismissed.  

14.  In the circumstances and for the reasons set out above, we dismiss the appeal.