RE DAO THI THANH HOA

CACV 243/2025, [2025] HKCA 600

On Appeal From [2025] HKCFI 1494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 243 OF 2025

(ON APPEAL FROM HCAL NO 332 OF 2020)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Michael Wong (“the Judge”)  dated 16 April 2025 ([2025] HKCFI 1494)(“the Leave Decision”), refusing her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 22 January 2020 (“the Board’s Decision”), whereby the Board dismissed her appeal against the decision of the Director of Immigration (“the Director”)  dated 27 November 2019 (“the Director’s Decision”)  refusing her non-refoulement claim.

2.  On 29 April 2025, the applicant indicated her consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 10 September 2019.  She surrendered to the Immigration Department on 12 September 2019.  On 26 September 2019, she raised a non-refoulement claim on the basis that, if refouled, she feared that her creditors would harm or kill her owing to her unpaid debts, or force her to be a prostitute.  Details of the applicant’s claim were summarised by the Judge at [4] - [5] of the Leave Decision.

4.  By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed against the Director’s Decision to the Board 5 December 2019.  The applicant attended the oral hearing before the Board on 10 January 2020.  By the Board’s Decision, the Board dismissed her appeal and confirmed the Director’s Decision.  In essence, the Board found that the evidence suggested that the creditors were never serious as to their threats to the applicant: [40] of the Board’s Decision.  On the evidence, the applicant failed to establish that there were substantial grounds for believing that she would be subjected to torture if refouled: [41] - [48] of the Board’s Decision.  The Board also found that internal relocation would be available to the applicant upon her return: [56] - [57] of the Board’s Decision. Accordingly, her claim failed on all applicable grounds and her appeal was dismissed by the Board.

THE JUDGE’S DECISION

6.  On 6 March 2020, the applicant filed a Form 86[5] together with a supporting affirmation to apply for leave to apply for judicial review against the Board’s Decision.[6] No ground of challenge was advanced in her Form 86 or supporting affirmation.  As the applicant did not request for an oral hearing, the Judge considered her application on paper.

7.  By the Leave Decision, the Judge refused her application for leave to apply for judicial review.  His reasons were set out at [8] - [12] of the Leave Decision:

“8.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

9.  In assessing the applicant’s appeal, the Board held a hearing on 10 January 2020. The Board found that the feared threats from her creditors were never serious and they were merely means to pressurize her to repay the loan. The treatment she received did not fall within the meaning of torture under section 37U(1)  of the Immigration Ordinance. The injuries resulted from the attacks were minor and did not attain a minimum level of severity. Thus, the Board found that there were no substantial grounds for believing that she would be subjected to torture if she were to be sent back to Vietnam. Moreover, internal relocation was viable for the applicant.

10.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

11.  In Po Fun Chan v Winnie Cheung (2007)  10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

12.  For reasons aforesaid, the Leave Application is dismissed.”

THIS APPEAL

8.  In her Notice of Appeal filed on 29 April 2025, the applicant mainly complained that, if refouled, her life would be seriously threatened by her creditor and local gangsters as it might be possible for them to locate her.  She also claimed that internal relocation would be completely unfeasible as she was not an active person and there would be no guarantee that she would be able to adapt to the new place. She also complained that the Immigration Department failed to consider her human rights under various legislations but failed to particularise her complaint.

9.  In her supporting affirmation filed on 29 April 2025, the applicant claimed that she understood that there was “a good ground of appeal that was not necessarily considered at the leave stage” and that the Director and the Board did not “see the grounds to reserve their decisions”.  However, the applicant failed to specify what the said ground was.

10.  Contrary to the directions of the Registrar of Civil Appeals dated 29 April 2025, the applicant failed to lodge any written submissions.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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)]).

12.  In our view, the applicant’s appeal has no substance.  At the outset, her assertions are all general, vague and bare which are not proper grounds of appeal.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, she failed to identify any error with specific particulars against the Leave Decision.  Accordingly, her assertions are not valid grounds of appeal.

13.  In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the Leave Decision.  We agree with the Judge’s observations and see no basis to disturb the Leave Decision.

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