HOANG THI HOI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 154 /2025, [2026] HKCA 476

On appeal from [2025] HKCFI 695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 154 OF 2025

(ON APPEAL FROM HCAL NO 2954 OF 2019)

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J U D G M E N T

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

Background

1.  On 11 March 2025, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement claim[1]. The applicant filed a Notice of Appeal against the said decision on 25 March 2025.

2.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 30 October 2015.  She surrendered to the Immigration Department on 4 November 2015 and lodged her non-refoulement claim on the same day.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor and his followers.

3.  By a Notice of Decision dated 21 April 2017, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

4.  Before filing an appeal with the Board, the applicant filed a Form 86 and an affirmation on 9 October 2019 to seek leave to apply for judicial review against the decision of the Board.  She did not put forward any grounds for her intended challenge.

5.  The Board subsequently received the applicant’s notice of appeal against the Director’s decision on 31 October 2019.  The appeal was late for about 2½ years. The Board dealt with the late filing of the appeal on paper.  The applicant explained that she had lost the set of forms so she had not filed an appeal within the prescribed time.  The Board considered such an explanation could not justify the substantial delay.  The Board also found there would be no real risk the applicant would suffer harm upon her return to Vietnam even if her claims were accepted at face value.  The Board further found it would be reasonable for the applicant to relocate to Móng Cái to avoid the perceived risk.  Therefore, the Board concluded there are no special circumstances in this case that would make it unjust not to allow the late filing of the appeal and dismissed the application on 17 January 2020.

The judge’s decision

6.  Deputy High Court Judge K W Lung treated the leave application as an application for leave to bring judicial review against the Board’s decision.  He dealt with the application on paper as the applicant did not request for an oral hearing.  The judge held that the applicant has no valid ground to challenge the Board’s decision and failed to show any realistic prospect of success in the proposed judicial review.  Therefore, the judge dismissed the application on 11 March 2025.

Grounds of appeal

7.  The applicant stated the following grounds of appeal in the notice of appeal filed on 25 March 2025:

(1)  If she returns to Vietnam, her life would be seriously threatened or she would probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong.  They disregard the law and are willing to kill people;

(2)  It is completely unfeasible for her to change to live in another location as she would face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(4)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

8.  The applicant also submitted a written consent for this appeal to be disposed of on paper without an oral hearing.  She did not lodge any written submissions by the prescribed deadline as directed by the Registrar of Civil Appeals.

Legal principles

9.  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.

10.  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 scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  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.

11.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

12.  The applicant’s grounds in this appeal are just bare assertions without sufficient particulars or evidence in support.  She also failed to identify any error in the judge’s decision.  Therefore, the appeal is devoid of merit and is dismissed accordingly.