RE NGUYEN VAN HOAT

CACV 357 /2024, [2025] HKCA 130

On appeal from [2024] HKCFI 2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 357 OF 2024

(ON APPEAL FROM HCAL NO. 1791 OF 2019)

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JUDGMENT

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

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 27 August 2024^[1] refusing to give him leave to apply for judicial review.  The intended judicial review was in respect of the decision the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) rejecting his non‑refoulement protection claim.

2.  Despite directions given by the Court, the applicant did not lodge any written submission to support his appeal.  He had consented to the Court of Appeal disposing of his appeal on the papers without an oral hearing.      

The applicant’s claim

3.  The applicant is a Vietnamese national aged 40.  He entered Hong Kong illegally and surrendered to the Immigration Department on 11 July 2016.  He subsequently raised a non-refoulement claim based on fear of being harmed or killed by a triad member due to his inability to repay his debt owed to him.  His claim was set out in details in [6] of the Director’s decision. 

4.  In gist, the applicant claimed that he obtained a loan from a triad member for his construction materials business.  The business suffered a loss and was closed down in January 2016.  As the applicant was unable to keep up with the interest payment, the creditor demanded full repayment.  His followers assaulted the applicant with wooden sticks and threatened several times to kill him if he could not repay by June 2016.  In July 2016, as he could not repay the loan, and out of fear for his personal safety, the applicant fled to mainland China from where he sneaked into Hong Kong.           

The Director’s and the Board’s decisions

5.  By a Notice of Decision dated 21 August 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 17 January 2019, during which the applicant gave evidence and answered questions from the Board.  By a decision given on 3 June 2019, the Board dismissed the appeal.      

7.  In gist, for the reasons given at [53] to [55] of its decision, the Board rejected the applicant’s evidence as being incredible and inconsistent with the claim he made to the Director in significant aspects.  The Board did not accept that he had borrowed money, or he had been threatened or harmed.  The Board found he failed to establish the factual foundation of his claim.  The Board further considered that even if his evidence were accepted, the applicant’s claim could not satisfy the requirements of any of the applicable grounds.  The Board concluded that the applicant failed to prove his entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

8.  The applicant filed a Form 86 and an affirmation on 26 June 2019 to seek leave to apply for judicial review against the decision of the Board.  Other than outlining the factual basis of his claim in the supporting affirmation, the applicant did not provide any grounds for seeking relief. 

9.  The Judge heard the leave application at a hearing on 3 July 2024.  The applicant was absent at the hearing.  By a Form CALL-1 dated 27 August 2024, he refused to extend the time and dismissed the application.  The Judge held that the applicant had given no valid ground to challenge the finding of facts made by the Board and his intended judicial review had no realistic prospect of success.

The appeal

10.  By a notice of appeal dated 5 September 2024, the applicant appealed the Judge’s decision to this court. 

11.  The grounds of appeal in the notice of appeal stated that: (1) the creditors and gangsters in Vietnam are cruel, violent and will readily kill people; the applicant will be tortured, beaten or killed by his creditor if he returns to Vietnam; (2) 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; (3) the gangsters will be able to track the applicant as they have a nationwide network and help from the corrupt government officials and police; and (4) the Director has disregarded the applicant’s human right. 

12.  The applicant also filed an affirmation in which he stated that there was a good ground of appeal that was not being considered at the leave application stage.  We will not consider this affirmation as no leave has been given for the applicant to file new evidence in this appeal.  In any event, the affirmation only makes a vague assertion and has not even identified what is the ground of appeal referred to.

Our reasons for decision

13.  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.  In sum, 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 scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  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.

14.  We are of the view that the grounds of appeal in the notice of appeal are unarguable.  Importantly, the applicant has not identified any error in the Judge’s decision.  Secondly, the Board had found the applicant’s evidence incredible and rejected it in its entirety.  The applicant has not provided any valid basis for challenging the Board’s findings.  In the circumstances, his assertion that he will be harmed if he returns to Vietnam has no factual foundation and cannot stand. Likewise, his assertion that his human right has not been considered must also fail. 

15.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.