RE TRAN QUANG HANH

CACV 46/2026, [2026] HKCA 666

On appeal from [2026] HKCFI 78

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 46 OF 2026

(ON APPEAL FROM HCAL NO. 1229 of 2025)

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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):

Background

1.  On 19 January 2026, the applicant filed a Notice of Appeal to appeal the decision given by Deputy High Court Judge Lung (“the Judge”)  on 7 January 2026 refusing his application for leave to apply for judicial review ([2026] HKCFI 78).  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dated 15 May 2025 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 27 February 2025 which rejected his non-refoulement claim. 

2.  The appeal was initially fixed for hearing on 9 March 2026.

3.  By the directions of the Registrar of Civil Appeals given on 19 January 2026, the applicant was required to lodge two sets of appeal bundle by 2 February 2026.  Upon the applicant’s failure to comply with the directions, Au JA made an unless order on 3 February 2026 (“Unless Order”), stipulating that unless the applicant lodged with the Court two sets of appeal bundle by 4:00 pm on 10 February 2026, the applicant’s appeal shall stand to be dismissed without further order of the Court and the hearing of the appeal shall be vacated.  The Unless Order was communicated to the applicant by letter of the same date. 

4.  The applicant did not comply with the Unless Order.  The appeal was accordingly dismissed on 10 February 2026 and the hearing date of 9 March 2026 was vacated. 

The applicant’s application for time extension

5.  By a letter dated 24 February 2026, the applicant applied for an extension of time to lodge the appeal bundles.  On 13 March 2026, Chu VP directed that the application be treated as an application for relief against the sanction imposed by the Unless Order and further directed the applicant to lodge bundles and written submissions in support of his application by 1 April 2026.  The applicant has not lodged any bundles or submissions as directed.  

6.  As indicated in this Court’s directions of 13 March 2026, we will determine the application on the papers, pursuant to Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A.  

Our reasons for decision

7.  Under Order 2 rule 5(1), when dealing with an application for relief from the sanction imposed by the failure to comply with a court order, the court shall consider all the circumstances, including, among others, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is a good explanation for the failure to comply.

8.  There is no doubt that since as early as 19 January 2026, the applicant has been made aware of his obligation to prepare appeal bundles.  The applicant stated in his letter dated 24 February 2026 that he had lost some of the documents, and needed time to search the court file to obtain copies of them for compiling the appeal bundles.  However, by the time of his letter, the applicant had more than one month to carry out a search of the court file and to take copies of documents that he needs.  Another five weeks had lapsed when the deadline given in the court’s directions dated 13 March 2026 ended on 1 April 2026.  As of now, the applicant has not lodged any bundles for his appeal.

9.  In the circumstances, we are not satisfied that the applicant has satisfactorily explained his non-compliance with the directions given by the Registrar for Civil Appeals and the Unless Order, such that the Court should exercise its discretion to give relief from the sanction imposed by the Unless Order.  

10.  We are further of the view that, for the reasons given below, the applicant’s appeal has no merits, which is a weighty factor why the Court should not grant relief from the sanction imposed by the Unless Order.  

11.  The applicant is a Vietnam national aged 39.  He entered Hong Kong illegally and was arrested by the police on 22 July 2024.  He made a non-refoulement claim based on fear of being harmed or killed by his creditor due to his inability to repay a loan. 

12.  The Director refused the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds. 

13.  The Board dismissed the applicant’s appeal after holding an oral hearing on 16 April 2025.  Principally the Board considered that, on the evidence, the injury suffered by the applicant did not attain a minimum level of severity to amount to torture, and the creditor, whilst trying to pressurise the applicant to repay his loan, did not appear to intend to cause serious harm or to kill him.  The Board also found state protection and internal relocation alternatives were reasonably available, which would negate or reduce any harm that he might face.  The Board concluded that the applicant failed to establish any of the applicable grounds.  

14.  On 28 May 2025, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  In support of his application, the applicant contended in his affirmation that the Board failed to consider the BOR 2 risk, over relied on the country-of-origin information without considering his personal background and the facts of his case, and had demanded him to answer questions that he was not in a position to respond. 

15.  By a Form CALL-1 dated 7 January 2026, the Judge refused to give leave to the applicant to apply for judicial review.  In gist, the Judge was of the view that the applicant’s grounds for the application were mere bare assertions, which did not amount to valid challenges to the Board’s decision, and the applicant had failed to show that his intended judicial review has realistic prospect of success.

16.  The grounds of appeal in the Notice of Appeal state that: (1)  the applicant’s creditor and associates have no regard for the law and will readily kill people; (2)  the applicant will be tortured, beaten or killed by his creditor; (3)  internal relocation is not feasible because the applicant will face many difficulties and obstacles, he will be disadvantaged in the labour market, and he may not be able to adapt and make a living; and (4)  the Director has disregarded the applicant’s human right.

17.  The general principles governing an appeal in a non-refoulement case have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In light of the established legal principles set out in the case, we are of the view that the grounds of appeal in the Notice of Appeal do not constitute viable grounds of appeal.  First, the applicant has not identified any error in the Judge’s decision.  Second, the grounds of appeal raise matters that were not argued in the application made to the Judge.  Third, there is no evidence to support the contentions put forward in the Notice of Appeal.  Fourth, and in any event, assessment of risks and harm and viability of internal relocation are matters for the Board, who is the primary decision maker.  The applicant has not shown in what way the Board had erred in finding that his injury did not meet the required level of severity or that it was not shown that the creditor intended to cause serious harm to him or to kill him.  Similarly, the applicant has not provided particulars to support his complaint that the Board had relied on wrong or inappropriate materials in concluding that internal relocation alternatives were reasonably available.  

18.  As the applicant’s appeal has no merits, it would be futile to grant relief, and not in the interest of administration of justice to allow the applicant to proceed with the appeal.  Accordingly, we refuse the application for relief from the sanction imposed by the Unless Order.