RE VUTHI XUAN THU

CACV 1/2026, [2026] HKCA 375

On Appeal From [2025] HKCFI 6267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1 OF 2026

(ON APPEAL FROM HCAL NO. 2493 OF 2020)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Vincent Lung dated 19 December 2025 ([2025] HKCFI 6267)  (‘the Leave Decision’)  refusing her application for leave to apply for judicial review (‘the Leave Application’)  against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (‘the Board’)  dated 29 October 2020 (‘the Board’s Decision’), whereby the Board dismissed her appeal against the decision of the Director of Immigration (‘the Director’)  dated 13 September 2018[1], refusing her non-refoulement claim. The applicant was absent on the hearing of the appeal and we will deal with her appeal on paper.

2.  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 [1]-[4], [9]-[11] of the Leave Decision[2].

3.  The applicant arrived in Hong Kong from Vietnam by air in February 2015.  Upon arrival, she wandered around in a park and met a Vietnamese who provided food and accommodation to her for one to two days.  The applicant eventually surrendered herself to the Immigration Department in August 2016 and also made a non-refoulement claim as well[3].  The basis of her claim is that if she returned to Vietnam, she will be harmed or killed by her creditor[4].

4.  The Judge sets out his reasons for refusing the Leave Application: see [5]-[8], [11] of the Leave Decision.  We will not repeat the details herein.

5.  By the Notice of Appeal filed on 2 January 2026, the applicant stated the following in summary :

1)  The applicant will risk being harmed or killed if she returns to Vietnam;

2)  Internal relocation is not feasible;

3)  The Immigration Department did not consider her human rights;

4)  The applicant seeks asylum in Hong Kong; and

5)  The applicant’s appeal is important.

6.  In her supporting affirmation, the applicant simply refers to her Notice of Appeal.  In her written submissions, the applicant stated the following in summary :

1)  The adjudicator commented that the creditors did not inflict serious injury to the applicant.  The adjudicator could not have opined that the creditors did not inflict grievous bodily harm on the applicant.  It was conjecture on the part of the adjudicator to say that the creditor only wanted repayment[5];

2)  The applicant should have been given the opportunity to be further heard orally or in writing before a decision is made to the claim[6];

3)  There was no indication that the country of origin information relied upon by the adjudicator was based on independent information[7];

4)  It was irrational that the decision maker concluded that the suffering of the applicant did not reach the minimum level of severity while at the same time acknowledged that the applicant was ‘pummeled, bludgeoned’[8];  

5)  The Board failed to consider the applicant’s undue hardship when deciding that internal relocation was feasible[9]; and

6)  The applicant is recently informed by her family that the creditors sent people to her brother’s house looking for her to kill her.  They assaulted her brother causing him to be hospitalized[10].

7.  None of these bare assertions in the applicant’s written submission relate to any complaint against the Judge.  The applicant was given an opportunity to be heard before the Board[11], and she provided only bare assertion that there is a need to give her further chance to be heard.  The Board never acknowledged that the applicant was ‘pummeled, bludgeoned’.  The Board found that it was not unduly harsh for the applicant to relocate[12].  The applicant’s new evidence of her brother being assaulted could only be dealt with by the Board and not by this Court on appeal: See Trinh Thuy Huyen [2024] HKCA 1090 at [14]-[16].

I.   Discussion

8.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

9.  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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.  The Court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)].

10.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Leave Decision with sufficient particulars and specifics.

11.  However, nowhere in her Notice of Appeal, affirmation nor written submission did the applicant identify any error committed by the Judge with specific particulars. Her assertions are all general, bare and vague allegations unsupported by specific particulars or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  The Court will not usurp the role of the Board.  Assessment of evidence, country of origin information materials, 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.  No such error was demonstrated by the applicant.  Clearly, her assertions do not constitute viable grounds of appeal and lack substance.  We see no basis to interfere with the Leave Decision.

12.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.