RE PHAM THI HUONG

CACV 118/2023 , [2025] HKCA 531

On appeal from [2023] HKCFI 771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 118 OF 2023

(ON APPEAL FROM HCAL NO. 959 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 6 April 2023 ([2023] HKCFI 771)  refusing to give her leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal against the decision of the Director of Immigration (“the Director”)  which rejected her non-refoulement protection claim.

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

3.  The applicant is a Vietnamese national aged 51.  She entered Hong Kong illegally and was arrested by the police on 11 May 2016.  She subsequently raised a non-refoulement claim based on a fear of being harmed or killed by her creditor and her followers due to her inability to repay a debt.  Her claim was set out in detail in [7] of the Director’s decision.  In gist, the applicant claimed that in 2014 she obtained a loan from a moneylender to start a garment business.  Her business suffered a loss and she was unable to make repayment.  Since August 2015, the moneylender repeatedly pressed her for repayment, made death threats and also threatened to seize her home.  In October 2015, the moneylender and her followers went to the applicant’s home and assaulted her and her husband with wooden poles.  Thereafter the applicant left home and after a while found work in another city.  Eventually in May 2016, she came to Hong Kong via mainland China.   

4.  By a Notice of Decision dated 9 December 2016, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. 

5.  The Board heard the applicant’s appeal at an oral hearing on 13 February 2019.  By a decision given on 28 March 2019, the Board dismissed the appeal.  

6.  In gist, the Board considered the applicant’s evidence unreliable.  Independent of that, the Board also considered that, even on the applicant’s case, it was a private dispute, the harm inflicted by the moneylender and her people did not attain the minimum level of severity, and there is no real risk of the moneylender pursuing the applicant all over Vietnam or inflicting serious harm on her.  The Board further found internal relocation alternatives were reasonably available, which would reduce any risk of harm that the applicant might face.  The Board concluded that the applicant failed to prove her entitlement to non-refoulement protection under any of the applicable grounds.

7.  The applicant filed a Form 86 and an affirmation on 9 April 2019 to seek leave to apply for judicial review against the decision of the Board.  The applicant advanced the following grounds for seeking relief:

(1)  The Director made a mistake about her brother’s address.  It was in Hai Phong and not Ho Chi Minh.

(2)  The Director was wrong to say that the General Secretary of the Communist Party of Vietnam had taken steps against corruption and he and his subordinates had disclosed their assets. 

(3)  The Director was wrong to find she would have state protection because she had reported the matter to police, but no investigation was carried out.

(4)  The Board failed to consider how likely her feared treatment would materialize.

8.  The Judge dealt with the leave application on the papers.  By a Form CALL-1 dated 6 April 2023, the Judge dismissed the application, finding that the intended judicial review had no realistic prospect of success.  The Judge rejected the grounds advanced by the applicant for the reasons given in [14] in the Form CALL-1:

“… (1)  is a mistake of her brother’s residence, but it will not affect the substance of her case in the Director’s assessment. (2)  and (4)  are her personal opinion without any evidence in support. (3)  will not assist her case as the Director’s conclusion was made by reference to the country-of-origin information, which applies to the state as a whole. Her complaint against a police station is only an individual case. She had not taken the complaint further to other police stations or the higher levels.”

9.  By a notice of appeal dated 18 April 2023, the applicant appealed the Judge’s decision to this court. 

10.  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 her creditor if she returns to Vietnam; (2)  internal relocation is not feasible because the applicant will face many difficulties and obstacles, she 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. 

11.  The applicant also filed an affirmation which 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 identified what is the ground of appeal referred to.

12.  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.

13.  We are of the view that the matters stated in the notice of appeal do not constitute viable grounds of appeal: 

(1)  Importantly, the applicant has not identified any error in the Judge’s reasoning and decision.  Moreover, the grounds in the notice of appeal had not been raised before the Judge.  It is not open to the applicant to put forward new grounds in an appeal especially when they are fact-sensitive.  In any event, there is no evidence to support the assertions.  

(2)  Further, the Board found that the applicant’s evidence was unreliable and, even if her evidence was to be accepted, her claim failed to meet the legal requirements of the applicable grounds.  The grounds of appeal has not addressed these important findings and assessments made by the Board.  The applicant has not shown any error of law, irrationality or procedural irregularity or unfairness in the Board’s decision, and there is thus no proper basis for her intended judicial review.  

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