RE LE VAN TOI

CACV 1207/2025, [2026] HKCA 135

On Appeal From [2025] HKCFI 5764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1207 OF 2025

(ON APPEAL FROM HCAL NO 1089 OF 2025)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Leung J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 8 December 2025 ([2025] HKCFI 5764) (“the Leave Decision”) refusing his application for leave to apply for judicial review (“the Leave Application”) against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 2 May 2025 (“the Board’s Decision”). By the Board’s Decision, his appeal against the decision of the Director of Immigration (“the Director”) dated 19 February 2025, which refused his non-refoulement claim, was dismissed.

2.  The applicant is a national of Vietnam. His background, the basis of his claim and his arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal were set out in the Board’s Decision: see [4] – [10] of the Leave Decision[1]. The Judge also set out the grounds advanced by the applicant in support of the Leave Application and his reasons for refusing the Leave Application: see [11] – [18] of the Leave Decision. We will not repeat the details herein.

3.  By the Notice of Appeal filed on 17 December 2025, the applicant essentially reiterates his fear of being killed or harmed by his creditor upon refoulement, and that he considered internal relocation within his country infeasible as he would face difficulties and obstacles in terms of adaptation and job opportunity. He also alleges that the Immigration Department failed to consider his human rights under various international covenants and legislations, but without specifying the provisions.

4.  The applicant filed an affirmation on the same date as the Notice of Appeal. By that, he asserts his understanding that “there [was] a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review” and that he “was informed that the Director of Immigration and the Adjudicator did not see the grounds to reserve their decisions”. No particulars were given.

5.  The applicant lodged his written submissions on 19 January 2026 whereby he seeks to argue the following grounds:

(1) The Board took into account irrelevant matter by overstating the probable motive of his creditors in wanting repayment only, and failed to take into account relevant matter by paying no due regard to the severity of his bodily harm and mental suffering and underestimating the real and foreseeable risk of harm which he may face on refoulement.

(2) The Board failed to apply high standards of fairness when it should have invited the applicant to make further representations before concluding that the alleged impermissible act of the creditors had nothing to do with the state.

(3) The Board failed to exercise independent assessment in respect of the credibility and veracity of the country of origin information (“COI”) before concluding that the applicant could enjoy state protection on refoulement.

(4) The Board was irrational in holding on the one hand that the applicant had not adduced sufficient evidence that his physical injury and mental suffering had met the minimum level of severity as required by law while on the other hand acknowledging his horrid and terrible experience of having been pummelled, bludgeoned and put to death threat by his creditors.

(5) The Board had failed to take relevant matters into consideration when holding that internal relocation would be feasible.

6.  We heard the appeal on 2 February 2026. A Vietnamese interpreter was present to provide language assistance. During the hearing, the applicant had nothing to add to his written representations.

7.  The relevant legal principles governing appeals in non-refoulement cases were 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 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. The Court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review.

8.  Be that in his Notice of Appeal, supporting affirmation or submissions, the applicant essentially repeated his assertions and complaints about the decision of the Director and the Board’s Decision. The assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily matters within the realm of the Board. The Court will not interfere with the findings of fact made by the Board unless there are errors of law or procedural unfairness or irrationality on the part of the Board in arriving at its decision: Re Kartini [2019] HKCA 1022 at [13].

9.  The Judge correctly explained the principles at [13] – [15] of the Leave Decision. The Judge also considered the findings of the Board made after oral hearing, and found that the applicant’s challenges against such findings and the Board’s Decision were bare assertions unsupported by evidence: see [8]; [12]; [16] of the Leave Decision. The applicant fails to identify and particularise how the Judge is said to have erred in arriving at such decision which could give rise to any ground of appeal. In our judgment, the Judge was entitled in the circumstances to come to the Leave Decision, and we see no basis for interfering with it.

10.  This court notes that the contents of the Notice of Appeal, affirmation in support and written submissions are strikingly similar to those lodged in some appeals also heard on the same day. For the avoidance of doubt, this court applies the same legal principles but considers the circumstances of this appeal independently from the others.

11.  For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is dismissed.