RE NGUYEN THI THAO

CACV 697/2025 , [2026] HKCA 1217

On appeal from [2025] HKCFI 3737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 697 OF 2025

(ON APPEAL FROM HCAL NO. 599 OF 2020)

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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):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-refoulement Claims)  Y W Hew (“the Judge”)  given on 26 August 2025 ([2025] HKCFI 3737)  refusing to give her leave to judicially review the decision dated 20 March 2020 of the Torture Claims Appeal Board (“the Board”). The Board had by its decision dismissed the applicant’s appeal against the decision dated 9 December 2019 of the Director of Immigration (“the Director”)  which rejected her non-refoulement protection claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].

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

Background

3.  The applicant is a Vietnamese national born in 1989.  After entering Hong Kong illegally, she surrendered to the Immigration Department on 12 September 2019 and subsequently lodged a non-refoulement claim.  Her claim was based on fear of being harmed or killed by her creditor and his followers due to her inability to repay her debt.  According to the applicant, in 2019 she obtained a loan from a moneylender to start a gambling business.  Her business suffered a loss, and she was unable to keep up with the interest payment.  On four occasions in August 2019, the moneylender and his followers made threats to her, caused disturbance at her home and assaulted her for which she received treatment at a hospital.  She reported the assault to the police but they took no action.  Details of the applicant’s claim, her arguments made to the Board and the Board’s reasons for dismissing the appeal were set out in the Board’s decision.  

4.  In gist, for the reasons given in [21] to [27] of its decision, the Board found the applicant’s evidence not credible.  The Board also considered that, even accepting the applicant’s evidence, her injury was not serious, which showed that the moneylender had no intention to cause serious harm or to kill her, and what he and his followers did was merely to pressurize her to make repayments.  The Board further found internal relocation alternatives were reasonably available, which would negate or reduce any risk of harm that she might face.  The Board concluded that the applicant failed to prove her entitlement to non-refoulement protection under any of the applicable grounds.

5.  The applicant filed a Form 86 and an affirmation on 14 April 2020 to seek leave to judicially review the Board’s decision.  She did not provide any grounds for seeking relief. 

6.  The Judge listed the leave application for a hearing on 26 May 2025, but the applicant was absent.  By a Form CALL-1 dated 26 August 2025, the Judge dismissed the application.  In summary, the Judge held that the intended judicial review had no realistic prospect of success, given that the applicant did not provide any grounds to challenge the findings made by the Board, and there was no error of law, irrationality or procedural unfairness in the Board’s decision.

This appeal 

7.  By a notice of appeal dated 5 September 2025, the applicant appealed the Judge’s decision to this court.  The grounds of appeal state that: (1)  the applicant will face the risk of being killed or harmed by the moneylender and his men as she cannot repay the loan; (2)  creditors and gangsters in Vietnam are cruel, violent and will readily kill people; and (3)  the applicant will be tortured, beaten or killed by her creditor if she returns to Vietnam. 

Discussion

8.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

9.  Further, it is well established that assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

10.  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 even on the applicant’s evidence, her claim failed to meet the legal requirements under the applicable grounds.  The applicant has not advanced any ground to challenge the Board’s assessment of the future risk of harm or the conclusions of the Board. 

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