RE NGUYEN BA HOAN

CACV 207/2026, [2026] HKCA 932

On appeal from [2026] HKCFI 906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 207 OF 2026

(ON APPEAL FROM HCAL NO 1329 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 Lung (“the Judge”)  given on 27 February 2026[1] refusing his application for leave to apply for judicial review against the decision dated 2 June 2025 of the Torture Claims Appeal Board (“the Board”). By its decision, the Board dismissed the applicant’s appeal against the decision dated 27 March 2025 of the Director of Immigration (“the Director”)  which 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 1990. He entered Hong Kong illegally and was arrested by the police on 29 November 2024.  He raised a non-refoulement claim on the basis that if he returned to Vietnam, he would be harmed or killed by his creditor due to his inability to repay his loan.  Details of the applicant’s background, the basis of his claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal were set out in the Board’s decision[6].

3.  The applicant’s application for leave to judicially review the Board’s decision was refused by the Judge.  The Judge’s reasons for refusing leave were set out in [13] to [17] of the Form CALL-1. We will not repeat them.

The appeal

4.  On 9 March 2026, the applicant filed a Notice of Appeal to appeal the Judge’s decision to this Court. Other than stating that the applicant did not agree with the Judge’s decision and he is not safe in his country, the Notice of Appeal did not provide any specific grounds of appeal to challenge the Judge’s decision.

5.  The appeal was listed for hearing on 5 May 2026. By a notice dated 15 April 2026, the applicant requested that his appeal be dismissed.  Having considered the papers, we are of the view that the appeal ought to be dismissed for the reasons given below.

Discussion

6.  In considering the appeal, we have regard to the well established legal principles on 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]; Re Limbu Birkhaman [2019] HKCA 50 at [11]; and Re Kartini [2019] HKCA 1022.  Relevantly, 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 as they are the primary decision makers.  Judicial review does not operate as a further avenue of appeal, and 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 judge’s decision 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. 

7.  In the present case, for the analysis and reasons given in its decision, the Board found the applicant’s evidence incredible and that he had fabricated a case to seek non-refoulement protection.  The Board also found that, even on the applicant’s own evidence, the threats and injuries sustained did not attain a minimum level of severity and his creditor did not appear to have a real intention to seriously harm or kill him. The Board further found state protection and internal relocation options to be reasonably available, which would negate or reduce any risk of harm that the applicant might face.  The Board accordingly concluded that the applicant had failed to substantiate his claim on any of the applicable grounds.

8.  In the Form 86, the applicant sought to challenge the Board’s decision on the grounds that it was unreasonable, unfair and irrational in that it had over relied on the country-of-origin information, failed to have regard to his personal background and experience, and had unreasonably rejected his explanations and required him to answer questions to which he was not in a position to offer a response.  

9.  The grounds advanced by the applicant to support his application for leave to apply for judicial review were, however, general assertions not supported by particulars.  They also did not engage with the Board’s analysis and reasons for disbelieving his account and the findings summarised in [7] above.  The finding on credibility and assessment of risk were findings open to the Board based on the materials before it and for the reasons it gave.  The applicant failed to show any reasonably arguable public law error in relation to the Board’s decision.  His intended judicial review had no reasonable prospect of success, as the Judge held.

10.  In this appeal, the applicant has not pointed to any error in the reasoning and decision of the Judge.   There is no proper basis for this Court to disturb the Judge’s decision.  

11.  For the above reasons, the applicant’s appeal has no merits.  Accordingly, we dismiss the appeal.