NGUYEN XUAN CUONG v. TORTURE CLAIMS APPEAL BOARD

CACV 1165/2025, [2026] HKCA 101

On Appeal From [2025] HKCFI 5810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1165 OF 2025

(ON APPEAL FROM HCAL NO 817 OF 2021)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 28 November 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 24 March 2021 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 November 2020 rejecting his non-refoulement claim.

2.  The Applicant alleges that, if refouled to Vietnam, he will be harmed or killed by his creditor for failing to repay a loan. The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing the Applicant’s appeal against the Director’s decision have been set out in detail in the Board’s Decision, and summarised by the Judge in the Judge’s decision (see §§1-8 of the CALL-1 Form). We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§9-12 of the CALL-1 Form. In gist, the Judge found that the Applicant had not advanced any ground of intended challenge against the Board’s Decision in the Form 86 or in his supporting affirmation, and further found that there was no error of law or procedural unfairness in the decisions of the Director and the Board, nor any failure on their parts to apply high standards of fairness in assessing the Applicant’s claim.

THIS APPEAL

4.  In his Notice of Appeal filed on 10 December 2025, the Applicant repeats his claimed fear of harm from his creditor in his home country, and asserts that his creditor and the subordinates of his creditor disregard the law and are willing to kill people to satisfy their anger and ferocity. He disagrees with the Director’s assessment that he could move to another location in Vietnam to avoid his creditor for various reasons, and alleges that the Immigration Department did not consider his human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

5.  In his written submissions lodged on 13 January 2026, the Applicant raises five grounds of appeal, which may be summarised as follows:

(1)  Ground 1 – The Board erred in holding that the Applicant’s creditor had not inflicted any grievous bodily harm on the Applicant and had no real intention of killing him other than to pressurise him to repay his loan. The Board failed to take into account the grievous bodily harm and mental suffering inflicted on him by his creditor.

(2)  Ground 2 – The Board failed to apply a high standard of fairness in holding that there was no state involvement in the private dispute between the Applicant and his creditor. The Board failed to adopt an active role to investigate into the Applicant’s case, or conduct an oral hearing of his appeal or invite him to make written submissions before the Board came to a decision.

(3)  Ground 3 – The Board failed to conduct an independent assessment of the Applicant’s claim in concluding that state protection would be available to him upon refoulement. The Board erred in relying on news which might not be reliable country of origin information (“COI”) to come to its decision.

(4)  Ground 4 – The Board was irrational in holding that there lacked any or any sufficient evidence to show that the physical injury and mental suffering of the Applicant had attained the requisite minimum level of severity of ill-treatment while acknowledging that the Applicant “had indeed been pummeled, bludgeoned and threatened with a death threat by his creditors” and conceding that “it was a horrid and terrible experience”.

(5)  Ground 5 – The Board failed to consider the undue hardship that the Applicant would face if he was to relocate to another city in Vietnam.

6.  The Applicant did not appear at the hearing of the appeal.

DISCUSSION

7.  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 was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

8.  Further, the 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. 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: Re Kartini [2019] HKCA 1022, at §13. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

9.  The Applicant did not put forward any intended ground of judicial review in the Form 86 or in his supporting affirmation below. We do not consider that he is entitled to raise the above mentioned new points in the Notice of Appeal or written submissions in support of the present appeal. In any event, all those points relate to matters falling within the province of the Board and Director, and for the reasons given in §8 above, cannot give rise to any proper grounds for judicial review.

10.  The matters raised in the Notice of Appeal are general assertions without particulars, and cannot constitute valid grounds of appeal. Also, some of the matters raised by the Applicant are directed at the Director’s decision which is not reviewable because the Director’s decision has been overtaken by the Board’s Decision and the Board has examined the Applicant’s non-refoulement claim afresh.

11.  The five grounds of appeal raised in the Applicant’s written submissions do not have merits. We shall deal with them briefly below.

12.  Grounds 1 and 4 can be taken together as they both concern the Board’s assessment of the evidence before it when considering whether or not the injury suffered by the Applicant had attained the requisite level of severity which would give rise to a real risk of harm under any of the applicable grounds for non-refoulement protection. It was the Applicant’s case before the Board that on one occasion, he was slapped, punched and kicked by his creditor and the subordinates of his creditor for two to three times, causing bruises on his body (see §6 of the Board’s Decision). He treated himself with ointment only and recovered fully after around one month. The Board had considered the alleged injury inflicted on the Applicant by his creditor, and was entitled to find that the injury was not serious and his creditor had no real intention to kill him (§16). The Board did not find that the Applicant had been “pummeled, bludgeoned and threatened with a death threat by his creditors” as alleged by the Applicant under Ground 4. The Applicant’s complaint that the Board ought to have given him an opportunity to put forward further arguments and submissions to fully present his case has no validity. The Applicant has advanced nothing of substance before this Court which would have advanced his case further.

13.  In respect of Ground 2, the Board found that there was no evidence or indication of state involvement in the Applicant’s dispute with his creditor (see §18 of the Board’s Decision). The Applicant asserts that the Board did not take an active role to investigate into the issue of state involvement contrary to the high standard of fairness required for determining his claim. However, the high standard of fairness does not mean that the Applicant can simply sit back, or does not bear the burden of proving his case. Having considered the lack of sufficient evidence from the Applicant and taken into account the relevant COI, the Board was entitled to come to the view that the Applicant’s dispute with his creditor was private in nature without state involvement, and that state protection would be available to him upon refoulement.

14.  Under both Grounds 2 and 3, the Applicant complains that the Board’s disposal of his appeal without conducting an oral hearing was unfair and prejudicial to him[1]. The Applicant refers to the case of R (Osborn) v Parole Board [2013] 3 WLR 1020 to argue that he must be allowed to state his position orally as required by the high standard of fairness.

15.  In the present case, the Board dealt with the Applicant’s appeal on paper without an oral hearing. The Board was permitted to do so pursuant to Section 12 of Schedule 1A of the Immigration Ordinance, Cap 115, and Paragraph 15 of the Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme. The case of Osborn was considered by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, at §§32-36, where it was held that the requirement to have an oral hearing ultimately depends on an assessment of fairness taking into account the facts and context of the individual case. Other than his bare assertions that there were matters in relation to the issue of state involvement (under Ground 2) and reliability of the COI considered by the Board (under Ground 3) which would require clarification or elaboration by him, the Applicant has failed to show or substantiate any particular points or grounds which he could have submitted before the Board to address those issues or would have otherwise advanced his case. We consider the assessment of the Applicant’s claim by the Board was thorough and fair overall.

16.  In respect of the reminder of Ground 3, the Board had considered not only news in relation to the situation in Vietnam, but also other materials such as country or human rights reports produced by government authorities in the UK and the US, before the Board concluded on the availability of state protection (See §§19-31 of the Board’s Decision). The fact that the Board had not spelt out the details of the COI it had considered does not mean that the Board had not independently evaluated the relevant materials. There is nothing amiss in the Board’s approach in the evaluation of COI when assessing the Applicant’s claim.

17.  Lastly, in respect of Ground 5, the Applicant complains that the Board failed to take into account his lack of transferable skills to secure employment, his pre-existing injury, and the availability/unavailability of social support if he was to relocate to another city in Vietnam. This complaint by itself does not show there was any error of law or procedural irregularity in the Board’s ruling that it would not be unduly harsh for the Applicant, a 32-year old man (at the time of the appeal before the Board) with 12 years of education and about 14 years of working experience to relocate internally within Vietnam (see §§45 and 46 of the Board’s Decision).

18.  In all, the Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

19.  The Applicant’s appeal has no merit, and is dismissed.

20.  This judgment is written in English although the respective decisions by the Director and the Board are written in Chinese, because the Applicant’s Notice of Appeal and written submissions are written in English. If required, the Applicant may make an appointment with the clerk to this Court for an oral interpretation of this judgment in the Applicant’s preferred language at a mutually convenient time in the Court’s premises.