NGUYEN THI NGAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 274/2026, [2026] HKCA 1132

On Appeal From [2026] HKCFI 1438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 274 OF 2026

(ON APPEAL FROM HCAL NO 544 OF 2022)

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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 13 March 2026 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 11 May 2022.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 2 November 2021 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1987.  Her claim was made on the basis that if she returned to Vietnam, her creditor would harm or kill her due to her inability to repay a loan.  Details of the applicant’s background, the basis of her claim and arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal are all set out in the Board’s decision: see [4] of the Form CALL-1.  The Judge has set out the grounds advanced by the applicant in support of the application and his reasons for refusal of the application: see [15] – [21] of the Form CALL-1.

Appeal to this Court

3.  On 19 March 2026, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that the Judge erred by finding the proposed grounds of judicial review were not reasonably arguable; that the Judge failed to scrutinize the Board’s adverse credibility findings; that the Judge erred by treating the Board’s findings on credibility, state protection and internal relocation as purely factual matters; that the Judge failed to find that the Board’s findings on implausibility and inconsistencies were not rationally supported by evidence; that the Judge erred in concluding that internal relocation was a “non-issue”; that the Judge applied an excessively high threshold at the leave stage by determining the merits of the case; and that the Judge failed to properly consider whether the Board’s assessment of country of origin information and sufficiency of state protection was legally adequate.

4.  The applicant has lodged a skeleton argument for the appeal in which she stated that the Board considered irrelevant matters to the effect of underestimating the applicant’s risk of harm, that the Board failed to invite further submissions from the applicant on matters that required clarification, that the Board relied on country of origin information without critical assessment of its credibility, that the Board acted irrationally by finding that the applicant’s case did not meet the minimum level of severity, and that the Board failed to consider relevant matters in finding that internal relocation was viable for the applicant.

5.  As the applicant did not appear at the scheduled hearing, we will determine the appeal on the basis of the available documents and materials.

Discussion

6.  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.

7.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it found that the applicant was not a credible witness and that her story of borrowing money and of subsequent events were all fabricated.  Nevertheless, the Board proceeded to consider if there was any real risk of harm upon refoulement as alleged.  It found that in any event the alleged harm did not attain the minimum level of severity, that it was a private dispute between the creditor and the applicant, that the creditor was not a state actor, that reasonable state protection would be available, and that internal relocation to a place of her choice within Vietnam was a viable option for the applicant.  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.

8.  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.  Contrary to the applicant’s submissions, the Judge had comprehensively assessed the Board’s decision, concluding that the Board had given full reasons for its findings on the evidence and that the Board’s findings of law were correct.  We are not satisfied that there is any error in the Judge’s decision.

9.  The applicant’s appeal is accordingly dismissed.