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

CACV 153/2026, [2026] HKCA 826

On Appeal From [2026] HKCFI 979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 153 OF 2026

(ON APPEAL FROM HCAL 1354 OF 2025)

BETWEEN

Before:  Hon G Lam JA and Lisa Wong J in Court

Date of Hearing: 14 April 2026

Date of Judgment: 21 May 2026

JUDGMENT

Hon Lisa Wong J (giving the Judgment of the Court):

Introduction

This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“Judge”) on 13 February 2026 refusing to grant leave to the applicant, a national of Vietnam, to apply for judicial review (“Judge’s Decision”).  The intended judicial review sought to quash the decision of the Torture Claims Appeal Board / adjudicator of the Non-‍refoulement Claims Petition Office (“Board”) dated 3 June 2025 (“Board’s Decision”), which upheld the decision of the Director of Immigration (“Director”) dated 6 March 2025 rejecting the applicant’s non-refoulement claim.

The applicant’s claim

The applicant’s claim was made on the basis that if she returned to Vietnam, her ex-‍husband’s creditor would harm or kill her because her ex-husband had sold her to the creditor in settlement of his debt.  Details of the applicant’s background, the circumstances giving rise to her said alleged fear, the arguments advanced by her before the Board and the Board’s reasons for rejecting her appeal are all set out in the Board’s Decision.  For the grounds advanced by the applicant in support of her application for leave to apply for judicial review and the Judge’s reasons for refusal, see [12] – [17] of the Form CALL-1.   

Appeal to this Court

By the notice of appeal filed herein on 23 February 2026, the applicant appealed against the Judge’s Decision, essentially on the grounds (1) that the Judge erred by failing to consider if the Board’s assessment on her credibility was irrational; (2) that the Judge failed to properly assess the country of origin information, the applicant’s personal circumstances, the risk from private actors and the adequacy of state protection; (3) that the finding relating to internal relocation was irrational in light of the applicant’s vulnerability as a victim of sexual violence; and (4) that the Judge erred in applying the test of realistic prospect of success.  

The applicant has lodged written submissions in which she complained (1) that the Director failed to place sufficient weight on the presence of state acquiescence; (2) that the Board failed to conduct proper inquiries before reaching its determination; (3) that the Director failed to consider country of origin information that was in favour of the applicant; (4) that the Director and the Board failed to properly assess the applicant’s personal circumstances; and (5) that she was denied an opportunity to properly present her case.  

As the applicant did not appear at the scheduled hearing and attempts to contact her had failed, we will determine the appeal on the basis of the available documents and materials.

Legal principles 

First, the primary decision‍-‍makers in a non‍-‍refoulement claim are the Director and the Board.  They alone assess the evidence and find ‍relevant facts.  An application for leave for judicial review does not provide a further avenue of appeal.  The court will not re‍-‍assess the non‍-‍refoulement claim.  It will intervene by way of judicial review only for errors of law, procedural unfairness or irrationality.  

Second, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for leave for judicial review.  This court is concerned with the decision of the judge at first instance, which it will consider in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  If no such error is shown, the appeal should be dismissed.

In support, 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]. 

Discussion

In the present case, the Board found no real risk of harm upon refoulement because it considered the applicant incredible and her evidence on the loan, the alleged harm she had suffered in the past and the alleged conduct of the creditor wholly unreliable.  Even if the Board considered all the available evidence at face value, it found that the alleged past ill-treatment did not meet the minimum level of severity; that the creditor was a non-state agent; that the risk was localised and internal relocation to Nha Trang or Bien Hoa would be viable for the applicant; and that reasonable state protection would be available.  These are findings of fact open to the Board on the evidence it received and for the reasons it gave.  Further, contrary to the applicant’s submissions, it is apparent from the Board’s Decision that she was allowed to present her case by giving oral testimony and answering the Board’s questions at the hearing before the Board.  The applicant has failed to show any or any reasonably arguable public law error in the Board’s Decision.

Equally, the applicant has not demonstrated any error in the Judge’s Decision.  We are not satisfied that there is any error in the Judge’s Decision.

The applicant’s appeal is accordingly dismissed.

The applicant was not represented and did not appear