NONG THI HA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 112/2025, [2025] HKCA 834

On Appeal From [2025] HKCFI 694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 112 OF 2025

(ON APPEAL FROM HCAL NO 1586 OF 2024)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 25 February 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 28 August 2024.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 27 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1975.  She first entered Hong Kong illegally from Mainland China and was arrested by the police in December 2012 for illegal staying.  She was later repatriated to Vietnam on 24 October 2013.

3.  The applicant claimed to have last entered Hong Kong illegally from Mainland China on 27 November 2014.  She surrendered to the Immigration Department on 15 January 2015 and submitted her intention to lodge a non-refoulement claim in Hong Kong on the same day.  The applicant’s claim was made on the basis that if she returned to Vietnam, she would be harmed or killed by her moneylender (Tin) for failure to repay a loan.   The factual background of the applicant’s claim was set out at [3] to [14] of the Board’s decision.

4.  By notice of decision dated 27 September 2017, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

5.  The applicant had previously appealed against the Director’s decision dated 27 September 2017, which was dismissed by the Board on 14 September 2018 (“Board’s 2018 Decision”).  Subsequently, the Judge granted her leave to apply for judicial review on 28 September 2022, and eventually the Board’s 2018 Decision was quashed on 4 December 2023.

6.  The applicant’s case was then re-heard by a differently constituted Board on 27 May 2024, during which the applicant gave evidence and answered questions from the Board.  The Board found that there was a glaring discrepancy in the applicant’s original claim of operating a “cow farm” (which had been previously formulated together with legal advice and an interpreter) and that they operated a “chicken farm” in her submissions at the oral hearing, which significantly undermined her credibility.  Even ignoring this significant discrepancy, the Board rejected the applicant’s case in any event, because it was incredible for the applicant and her husband to take the high risk of borrowing a large amount of money (without any collateral) solely due to her unrealistic expectation of a high return from the new business, for which they had no expertise or support.

7.  Despite the rejection of the applicant’s version of events, the Board proceeded to consider the risk of harm faced by the applicant on her version if she was refouled to Vietnam. It found there was in fact no real risk of harm if the applicant returned to Vietnam, because the dispute was a private matter without state involvement, the risk of harm did not reach the requisite level, state protection would be available for her, and internal relocation to anywhere outside of her own hometown would be viable.

8.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Vietnam.  By its written decision dated 28 August 2024, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

9.  On 16 September 2024, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision dated 28 August 2024, as ascertained by the Judge at the oral hearing.  Her stated grounds of appeal were that the Director’s decision was unfair and unreasonable, that the Director failed to give proper weight to the presence of state acquiescence, that the Director failed to give sufficient weight to COI supporting the applicant’s case, that the Director acted in a procedurally improper and unfair manner in assessing her explanations and asking questions to which she was not in a position to respond, and that the Director’s attitude was unfair.

10.  The Judge considered the application on the basis of the documents and the submissions of the applicant made at the oral hearing held on 5 February 2025.  On 25 February 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [15] to [22] of the Form CALL-1 as follows:

“ 15. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

16. At the hearing, after the above legal principles have been explained to the Applicant, she confirmed she had no complaint about errors of law, procedural unfairness or irrationality in the Decision. However, in her Form 86, she advanced the following five grounds:

(1) the Director’s decision is unfair and unreasonable;

(2) the Director failed to give proper weightage to the presence of state acquiescence;

(3) the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case;

(4) the Director was procedurally improper and unfair when assessing her explanations and asking questions that she was not in a position to respond; and

(5) the Director’s attitude was unfair.

These grounds are all directed at the Director. As the Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, for the Applicant’s benefit, the Court assumed that all grounds are directed at the Board. The Applicant confirmed that the grounds were prepared by her friend on the basis of the information she provided. She said she would be able to answer the Court’s questions relating to those grounds. The Court then went through the grounds with her one by one and asked her for particulars.

Ground (1): unfairness and unreasonableness

17. The Applicant was unable to provide particulars of the unfairness and unreasonableness alleged. All that she could submit was that she could not return to Vietnam because of the outstanding debt, her life would be in danger in Vietnam and all members of her family had left Vietnam. She was merely reiterated the facts of her case. Indeed, as noted in the preceding section she had confirmed to the Court that she had no complaint about unfairness or unreasonableness. Insofar as these particulars are treated as grounds of application, they amount to direct challenge of the Board’s finding of fact, which is not permissible.

Ground (2): failure to give proper weight to the presence of state acquiescence

18. The Applicant complains about the Board’s failure to give proper weight to the presence of state acquiescence. However, the particulars she gave are that she lived in the outskirt area far away from the police station; it was difficult to seek police assistance; the police are corrupt and she had no money to pay bribe. None of these particulars, even if they were factually correct, could support a claim that the ill-treatment were inflicted on her with state acquiescence. In fact, her arguments were wholly rebutted by the COI relied on by the Board.

Ground (3): failure to give proper weight to such argument and such COI supporting the Applicant’s case

19. The Applicant was unable to give any particulars of the “such argument” and COI. She had no argument or submission to refer this Court to. She said she never raised such issues and that this ground was put up by her friend.

Ground (4): procedural impropriety and unfairness

20. The Applicant said she answered all the questions asked by the Board honestly and everything in support of her case was written in the NCF, but she was disbelieved. Impliedly, she was alleging that it was procedurally improper and unfair to reject her claim for non-refoulement protection. These arguments as such are not particulars of procedural impropriety and unfairness. The Board had considered all the evidence presented by the Applicant and made a finding that she was not credible. It rejected her evidence in its entirety and hence found she had failed to prove the factual basis to support her claim for non-refoulement protection under all four applicable grounds. These are finding of facts solely for the Board. The Board also gave full reasons for its finding. This ground is a direct challenge of the Board’s finding of fact which is impermissible.

Ground (5): the Board’s unfair attitude

21. The Applicant admitted she had no complaint about the Board’s attitude. She said she had not advanced such ground of application.

Overall scrutiny

   22.     Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence properly, tested it against common sense and inherent probability.  It found the Applicant incredible and gave reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  For the above reasons, the Applicant’s leave application is refused.”

Appeal to this Court

11.  On 10 March 2025, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were that she would be seriously threatened or even killed by the creditors and gangsters, that internal relocation would be unfeasible, that the creditors and gangsters would be able to find her in any place in Vietnam, and that her human rights were not considered by the Director. 

12.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

13.  The applicant has not lodged any written submissions.

Discussion

14.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

15.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s version of events was found not to be credible and, even taken at its highest, would not amount to any real risk of harm for her.  The dispute was a private matter without state involvement, the risk of harm did not reach the requisite level, state protection would be available for her, and internal relocation to anywhere outside her own hometown would be viable.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.  As for the ground advanced relating to human rights, it consists of mere general and bald assertions regarding the decision of the Director without any particulars.  It does not constitute a viable ground of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

16.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

17.  The applicant’s appeal is accordingly dismissed.