|
CACV 849/2025, [2026] HKCA 428
On Appeal From [2025] HKCFI 4236
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 849 OF 2025
(ON APPEAL FROM HCAL NO 691 OF 2020)
________________________
BETWEEN
|
VU THI BINH |
Applicant |
| |
and |
|
| |
TORTURE CLAIMS APPEAL BOARD /
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
| |
and |
|
| |
DIRECTOR OF IMMIGRATION |
Putative Interested Party |
_____________________
| Before: |
Hon Poon CJHC and Ng J in Court |
| Date of Hearing: |
13 March 2026 |
| Date of Judgment: |
30 March 2026 |
________________
JUDGMENT
________________
The Court:
INTRODUCTION
1. This is the Applicant’s appeal against the order of DHCJ (Non-refoulement Claims) YW Hew (“the Judge”) dated 25 September 2025 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 11 June 2019 (“the Board’s Decision”).
BACKGROUND
2. The Applicant is a national of Vietnam. The Applicant lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by Thang, her creditor and his creditor’s subordinates due to an outstanding loan. The Applicant’s claim was rejected by the Director of Immigration (“the Director”) on 22 June 2017, and the appeal against the Director’s decision was rejected by the Board on 11 June 2019. 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.
3. The Applicant’s application for leave to apply for judicial review was refused by the Judge on 25 September 2025. Details of the Judge’s reasons for refusing to grant leave can be found in the CALL-1 Form.
GROUNDS OF APPEAL
4. In the Notice of Appeal filed on 8 October 2025, the Applicant essentially argued that she would be killed or harmed by her creditor and his subordinates if she returned, the Director failed to appreciate or properly assess the viability of internal relocation, and the Director failed to consider her human rights. In the supporting affirmation, the Applicant stated that there was a good ground of appeal that was not necessarily considered in the application for judicial review and that the Director and the Board “did not see the grounds to reserve their decisions”.
5. In the skeleton arguments filed on 26 January 2026, the Applicant argued that:
(1) The Board took irrelevant matter into consideration and failed to take relevant matters into consideration.
(2) The Board failed to apply a high standard of fairness.
(3) The Board failed to exercise independent assessment.
(4) The Board’s decision was irrational.
6. The Appeal was heard on 13 March 2026. The Applicant attended the hearing in person with the assistance of a Vietnamese interpreter and had nothing further to add.
LEGAL PRINCIPLES
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. 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 below will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.
DISCUSSION & DISPOSITION
9. The matters raised in the Applicant’s Notice of Appeal and supporting affirmation are all bare allegations without particulars whereas the complaints in the skeleton arguments are directed at the Board. They do not relate to the Judge’s reasons for refusing to grant leave to the Applicant to apply for judicial review and do not constitute any valid grounds of appeal against the Judge’s decision. Furthermore, general assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].
10. The Applicant has failed to identify and substantiate 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.
11. The Applicant’s appeal has no merit, and is dismissed.
(Jeremy Poon)
Chief Judge of the
High Court |
(Peter Ng)
Judge of the Court of
First Instance |
The Applicant, acting in person
|