NGUYEN VAN THANH v. TORTURE CLAIMS APPEAL BOARD

CACV 1238/2025, [2026] HKCA 321

On Appeal From [2025] HKCFI 6231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1238 OF 2025

(ON APPEAL FROM HCAL NO 817 OF 2020)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Michael Wong (“the Judge”) dated 17 December 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 16 April 2020 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 November 2019.

2.  The Applicant alleges that, if refouled to Vietnam, he will be harmed or killed by his creditor (Nguyen Van Tien)[1] because of his inability to repay an outstanding debt owed to the creditor.  The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing the Applicant’s appeal against the Director’s decision have been set out in detail in the Board’s Decision, and referred to by the Judge in the Judge’s decision (see §§2, 3, 8 and 9 of the CALL-1 Form).  We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§13-25 of the CALL-1 Form.  In gist, the Judge found that the Applicant had not advanced any or any valid ground for his intended judicial review.  The Judge considered that there were no errors of law, procedural unfairness or irrationality in the Board’s Decision.

THIS APPEAL

4.  In his Notice of Appeal filed on 29 December 2025, the Applicant repeats his claimed fear upon returning to his home country. He says that his creditor and the followers of his creditor disregard the law and are willing to kill people to satisfy their anger and ferocity.  He disagrees with the Director’s assessment that he could move to another location in Vietnam to avoid his creditor for various reasons, and alleges that the Immigration Department did not consider his human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

5.  In his supporting affirmation of the same date, the Applicant requests the Court of Appeal to exercise its discretion to allow his appeal.    

6.  In his written submissions lodged on 3 February 2026, the Applicant states that his younger brother was hospitalised because of a recent assault by his creditor.  He raises five grounds of appeal, which may be summarised as follows:

(1)     Ground 1 – the Board erred in underestimating the risk of harm that he would face upon refoulement by considering that his creditor did not inflict any grievous bodily harm on him and had no intention of killing him other than to demand for repayment of his debt.

(2)     Ground 2 – the Board erred in holding that there was no state involvement in his dispute with his creditor by failing to seek clarification or invite further submissions from him.

(3)     Ground 3 – the Board erred in holding that state protection would be available to him in Vietnam by relying on news that was not credible and without holding a hearing to hear from him orally.

(4)     Ground 4 – the Board was irrational in holding that the injuries he had suffered did not attain the required minimum level of severity, while accepting that he had been “pummelled, bludgeoned and threatened with a death threat by [her] creditors” (sic) which the Board said was “a horrid and terrible experience”.

(5)     Ground 5 – the Board failed to consider the undue hardship that he would face if he was to relocate to another city in Vietnam.

7.  At the hearing of the appeal, the Applicant stated that he needed to wait for his family to deal with his debt, and wished to stay in Hong Kong in the meantime.

DISCUSSION

8.  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 was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

9.  Further, the assessment of evidence, country of origin information (“COI”), 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: Re Kartini [2019] HKCA 1022, at §13.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

10.  The matters raised in the Applicant’s Notice of Appeal, supporting affirmation and written submissions are either repetitions of his claimed fear upon refoulement which have been rejected by the Board and/or the Judge, or new points which were not raised in his leave application below.  He is not entitled to raise these new points for the first time in the Court of Appeal.  In any event, they are all directed at the decisions of the Director and the Board, not the decision of the Judge, and cannot gives rise to any valid ground of appeal.

11.  For the sake of completeness, we shall briefly deal with the five grounds of appeal raised in the Applicant’s written submissions. We do not consider they have any merits.

12.  Grounds 1 and 4 can be taken together as they both concern the Board’s assessment of evidence in considering whether or not the injuries suffered by the Applicant from his creditor amounted to a real risk of harm, and whether such risk attains the minimum level of severity required for non-refoulement protection to be given.  The Board accepted that the Applicant’s story in respect of his dispute with his creditor was inherently consistent.  However, the Board did not make any of the findings alleged by the Applicant under Ground 4 in respect of the severity of the injuries inflicted on him[2].  The Board duly considered the two incidents where his creditor caused injuries to the Applicant.  In our view, it was open to the Board, based on the totality of the evidence, to come to its finding that the Applicant would not face any real or substantial risk of harm or ill-treatment from his creditor in Vietnam which would warrant non-refoulment protection to be given to him.

13.  In respect of Ground 2, it was merely the Applicant’s own belief that his creditor was connected with the police, and/or a triad society, in Vietnam.  He did not provide any substantive evidence to show state involvement in his case (see §5 of the Board’s Decision).  The Applicant asserts that the Board did not take an active role to investigate into the issue of state involvement contrary to the high standard of fairness required for determining his claim.  However, the high standard of fairness does not mean that the Applicant can simply sit back and does not bear the burden of proving his case.  The Applicant has failed to identify any evidence or matter which the Board should have taken into account when considering the issue of state involvement, but failed to do.

14.  Under both Grounds 2 and 3, the Applicant complains that he should be provided with an opportunity to make representations before the Board either orally at a hearing or in writing[3].  His complaint has no validity.  He attended a hearing before the Board where he gave evidence and adopted his written submissions previously made (see §§17 and 77 of the Board’s Decision).  The Applicant has failed to identify any particular point or evidence which he wished to make or adduce but could not do so at the hearing before the Board.

15.  Under Ground 3, the Applicant raises a complaint in respect of the Board’s evaluation of COI in considering the issue of state protection.  The COI considered by the Board was not limited to news from local news media, but include materials from other sources, such as news from international news media, and country or human rights reports by the US government authority (§§42-57).  The fact that the Board did not spell out the details of each piece of COI it had considered does not mean that the Board had not independently evaluated those materials.  There is nothing amiss in the Board’s approach in the evaluation of COI to find that state protection would be available to the Applicant upon refoulement.

16.  Under Ground 5, the Applicant’s complaint based on the alleged undue hardship to him as a result of internal relocation is misconceived.  As pointed out by the Judge at §21 of the Judge’s decision, the Board found it unnecessary to consider the issue of internal relocation in view of the fact that the Applicant had failed to establish his claim under any of the applicable risks (see §60 of the Board’s Decision).

17.  Lastly, the assertion in the Applicant’s written submission that his brother was recently assaulted is a bare allegation which is not substantiated by any evidence, and even if true, is not sufficient to challenge the Board’s findings on whether the risk of harm or ill-treatment faced by the Applicant would attain the minimum level of severity which would warrant non-refoulment protection to be given, or the availability of reasonable state protection.

18.  The Applicant has failed to raise any viable ground of appeal against the Order. 

19.  The Applicant’s appeal has no merit, and is dismissed.

[1] See §6.4 of the Director’s decision dated 29 November 2019.

[2] See §§26 and 27 of the Applicant’s Written Submissions.

[3] See §§22 and 25 of the Applicant’s Written Submissions.