RE HOANG THI THAM

CACV 209/2026, [2026] HKCA 972

On Appeal From [2026] HKCFI 911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2026

(ON APPEAL FROM HCAL NO. 1301 OF 2025)

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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 K W Lung (“the Judge”)  given on 27 February 2026[1] refusing her application for leave to apply for judicial review against the decision dated 2 May 2025 of the Torture Claims Appeal Board (“the Board”).   The Board had dismissed her appeal against the decision dated 20 December 2024 of the Director of Immigration (“the Director”)  which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of Vietnam born in 1985.  She last entered Hong Kong as a visitor on 22 March 2023 and was permitted to remain until 29 March 2023.  She subsequently overstayed and was arrested by the police on 22 July 2024.  On 25 October 2024, she lodged her non-refoulement claim on the basis that if she returned to Vietnam, she would be harmed or killed by two creditors “Pham” and “Vu” over two unpaid loans taken out by her and her husband to fund their business in Vietnam.  Details of the applicant’s background, the basis of her claim, the arguments advanced before the Board and the Board’s reasons for rejecting her appeal have been set out in the Board’s decision[6].

3.  By a Form 86 filed on 9 June 2025, the applicant applied for leave to judicially review the Board’s decision. Her grounds for seeking relief include: (1)  The Director’s decision was wrong, unreasonable and unfair, displayed an unfair attitude, failed to consider her right to life, state acquiescence, and failed to apply the high standard of fairness; (2)  the Board acted unreasonably, and was irrational and procedurally improper and unfair in over-relying on country-of-origin information without considering her personal background and experience and the fact that police in her country would not be able to protect her, and demanding her to answer questions that she was not in a position to respond to. 

4.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 27 February 2026, the Judge refused her  application for the reason that the applicant only made bare assertions and failed to show that her intended judicial review enjoyed any realistic prospect of success. 

This appeal

5.  On 9 March 2026, the applicant filed her Notice of Appeal against the Judge’s decision. Her stated ground of appeal was simply that she did not agree with the Judge’s decision and that it was not safe in Vietnam.  

6.  The appeal was listed for hearing on 5 May 2026.  Despite directions given by the Court, the applicant did not lodge any written submissions.  She was thus deemed to have waived her right to make submissions and the scheduled hearing was vacated pursuant to the directions of the Court.  We have therefore proceeded to determine the appeal on the basis of the available documents and materials.

Applicable legal principles

7.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Our reasons for decision

8.  The only ground put forward by the applicant is that it is not safe for her to return to her country.  However, the Board noted in its decision that the applicant and her husband never encountered their creditors after they failed to keep up with the repayment of their loans, and the creditors only delivered verbal threats to their family members.  The Board found that the evidence did not establish any substantial ground that there would be any foreseeable and real risk of the applicant being subjected to the proscribed harm.  The Board further had regard to a range of country-of-origin information and assessed that state protection was systematically sufficient and available in Vietnam, and internal relocation options were reasonably available, which would negate or reduce any risk of harm faced by the applicant.

9.  The assessments on risk of harm and availability of state protection and internal relocation options are findings of fact open to the Board based on the evidence it received and for the reasons it gave in [29] to [43] of its decision.  Although the applicant raised various complaints against the Board’s decision in her application for leave to apply for judicial review, they were general assertions not supported by particulars and did not engage the reasons of the Board. 

10.  In the circumstances, the applicant’s ground of appeal is unarguable.  We are satisfied that there is no proper basis to disturb the Judge’s conclusion that the intended judicial review had no realistic prospect of success.  Accordingly, we dismiss the appeal.