TO THI THAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 703/2025, [2026] HKCA 663

On appeal from [2025] HKCFI 3739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 703 OF 2025

(ON APPEAL FROM HCAL NO 738 OF 2020)

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J U D G M E N T

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The Court:

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-refoulement Claims) YW Hew (“the Judge”) dated 26 August 2025[1] refusing her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (the “Board”) dated 9 April 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”).

The applicant’s claim and the Judge’s decision

2.  The applicant is a national of Vietnam. In her non-refoulement claim form filed with the Immigration Department dated 28 October 2019, she lodged a claim on the basis that, if refouled, she would be harmed or killed by her creditor and his underlings for failing to pay her debt. The applicant’s non-refoulement claim was rejected by the Director, and her appeal against it was rejected by the Board on 9 April 2020. Details of the applicant’s claim and the Board’s reasons for rejecting the applicant’s appeal can be found in the Board’s Decision, the hyperlink to which can be found in the Form CALL-1.

3.  The applicant’s application for leave to apply for judicial review was refused by the Judge and details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1.

The appeal

4.  By a notice of appeal filed on 8 September 2025, the applicant sought to appeal the Judge’s decision to this court. The applicant’s grounds of appeal can be summarised as follows :-

(1)  The applicant will still face the risk of being harmed or killed by her creditor if she is returned to her home country;

(2)  Internal relocation as suggested in the Director’s decision is not feasible;

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

(4)  She seeks justice and asks for asylum in Hong Kong.

5.  The appeal was scheduled to be heard on 29 January 2026. The applicant has failed to lodge any skeleton argument in support of her appeal in accordance with the directions given by the Registrar of Civil Appeals on 8 December 2025. Accordingly, the applicant is deemed to have waived her right to have an oral hearing of the appeal, and elected to have the appeal disposed of on paper. The applicant was informed of the same by the court’s letter dated 9 January 2026.

Our reasons for decision

6.  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 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, at §14(6)).

7.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. In the present case, no such error of law or procedural unfairness or irrationality in the decision of the Board was observed by the Judge or was pointed out by the applicant apart from the mere assertions as stated in her grounds of appeal, which were not substantiated with any specific information or elaboration as to how they apply to her present appeal.

8.  In our view, the matters set out in the notice of appeal failed to identify any error on the part of the Judge and do not amount to any viable ground of appeal. The applicant’s appeal is devoid of merits. We dismiss it accordingly.