NGUYEN THI THAN v. TORTURE CLAIMS APPEAL BOARD

CACV 231 /2025, [2026] HKCA 565

On appeal from [2025] HKCFI 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2025

(ON APPEAL FROM HCAL NO 120 OF 2020)

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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 10 April 2025, Deputy High Court Judge Michael Wong 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 24 April 2025.

2.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 29 November 2015 and was arrested by the police on 29 November 2015.  She lodged her non-refoulement claim on 2 December 2015 on the basis that she would be harmed or killed by her creditor and his man if she is refouled.

3.  By a Notice of Decision dated 22 September 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].  Her appeal against the Director’s decision was rejected by the Board on 23 December 2019[6].

The judge’s decision

4.  The applicant filed a Form 86 and an affirmation on 13 January 2020 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 against the Board’s decision.  She was absent at the hearing scheduled before DHCJ Michael Wong on 11 March 2025 so the judge dealt with the application on paper.  The leave application was dismissed on 10 April 2025.

Grounds of appeal

5.  The applicant stated the following grounds of appeal in the Notice of Appeal:

(1)  If the applicant returns to Vietnam, her life would be seriously threatened because the gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent.  They disregard the law and are willing to kill people;

(2)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there would be many difficulties and obstacles.  The applicant is not an active person, which may disadvantage her in the labour market;

(3)  The nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus make it 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.

6.  The applicant submitted a written consent for this appeal to be disposed of on paper without an oral hearing.  The contentions in her written submissions may be summarised as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  the adjudicator acted in a procedurally unfair manner without properly assessing the applicant’s credibility.

Analysis and disposition

7.  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.

8.  In this appeal, the applicant reiterated the problems she faced in Vietnam and stated her complaints against the Director and the Board but did not adduce any evidence which can refute the findings of the Board. She did not put forward any ground against the judge’s decision. She failed to demonstrate 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.

9.  For the above reasons, the appeal is devoid of merit and is dismissed accordingly.