TRUONG NGOC LINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 437 /2024, [2026] HKCA 292

On appeal from [2024] HKCFI 2555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 437 OF 2024

(ON APPEAL FROM HCAL NO 2038 OF 2019)

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J U D G M E N T

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

Background

1.  On 4 October 2024, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim and dismissed the leave application^[1]. The applicant filed a Notice of Appeal against the decision on 18 October 2024.

2.  The applicant is a national of Vietnam.  She had been previously repatriated to Vietnam back in 2002, 2006 and 2012 respectively. She entered Hong Kong illegally again on 5 July 2015.  She surrendered to the Immigration Department on 27 July 2015 and lodged a non-refoulement claim on 23 September 2015.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the creditor and his men because of the outstanding debt of her husband.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 4 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

4.  The Director assessed that the risk of harm upon the applicant’s return to Vietnam is low as the creditor had only made verbal threats but had never physically harmed the applicant.  The Director also found that the applicant’s problem was a private monetary dispute without any involvement of the Vietnamese government.  The Director further held that the availability of state protection and internal relocation options in Vietnam would further lower or negate any perceived risk.  

5.  The applicant filed an appeal against the Director’s decision with the Board and attended the hearing before the Board on 1 March 2019.  The Board found that the applicant failed to establish that she would be subjected to persecution for a reason under the Refugee Convention (“RC”) as avoidance on loan repayment is not one of the RC reasons and reasonable state protection is available in Vietnam.  The Board did not accept that the ill-treatment has attained the requisite minimum level of severity.  The Board also found no evidence to show that the applicant was targeted by or was of interest to the Vietnamese government.  The Board decided that the applicant failed to establish her claim on any of the applicable grounds and dismissed the appeal on 20 March 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 17 July 2019 to seek leave to apply for judicial review against the decision of the Board.  She did not provide any grounds of her intended challenge in her application and she was late by about 3 months in taking out the leave application.

The judge’s decision

7.  DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing.  The judge held that the applicant failed to raise any valid ground to challenge the Board’s decision.  The judge also found that the Board’s decision is reasonable and the court has no reason to interfere.  As the judge was not satisfied that the applicant has any realistic prospect of success in her proposed judicial review, he refused to grant extension of time and dismissed the leave application on 4 October 2024.

Grounds of appeal

8.  The applicant stated the following grounds in her Notice of Appeal and affirmation:

(1)     If she returns to Vietnam, her life would be seriously threatened or she would probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong.  They disregard the law and are willing to kill people;

(2)     The suggestion of the Director on internal relocation is completely unfeasible as the applicant would face many difficulties and obstacles;

(3)     With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(4)     The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;

(5)     The Director and the Board did not see the grounds to reserve their decisions.

9.  The applicant submitted a written consent for the appeal to be disposed of on paper without an oral hearing.  Despite the directions given by the Registrar of Civil Appeals requiring the applicant to lodge written submissions on or before 1 November 2024, she did not lodge any written submissions.

Legal principles

10.  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.

11.  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 scrutinising 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.

12.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

13.  The applicant’s grounds were not raised in her previous application before the Court of First Instance.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below^[6]. In any event, the applicant has not identified any error in the judge’s decision.  She did not have any valid ground to challenge the judge’s decision. 

14.  Therefore, the appeal is devoid of merit and is dismissed accordingly.