RE NGUYEN NGOC NAM

CACV 242/2025, [2026] HKCA 627

On Appeal From [2025] HKCFI 1498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 242 OF 2025

(ON APPEAL FROM HCAL NO. 335 OF 2020)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Michael Wong dated 16 April 2025 ([2025] HKCFI 4689)  (‘the Leave Decision’)  refusing to grant extension of time to the applicant to apply for leave to apply for judicial review (‘the leave application’)  and dismissed the leave application. The leave application was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (‘the Board’)  dated 9 September 2019 (‘the Board’s Decision’), whereby the Board dismissed his appeal against the decision of the Director of Immigration (‘the Director’)  dated 5 May 2017, refusing his non-refoulement claim.

2.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the Court[1].  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the Court.

3.  The applicant’s background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision: see [6]-[7], [10], [12] of the Leave Decision[2].

4.  The applicant came to Hong Kong in 2006 from Vietnam illegally and was deported from Hong Kong back to Vietnam in July 2008.  The applicant claimed that he entered Hong Kong again illegally in December 2015 from the Mainland and surrendered to the authorities shortly.  He made his claim for non-refoulement in February 2016.  The basis of his claim is that if he returned to Vietnam, he would be harmed or killed by 1) the local police as they would detain him and harm him; 2) a financial institute as he cannot repay a debt owed; 3)  the financial institute as the applicant witnessed a killing arranged by the financial institution[3].

5.  The Judge also sets out the grounds advanced by the applicant in support of the Leave Application and his reasons for refusing the Leave Application: see [8]-[14] of the Leave Decision.  We will not repeat the details herein.

6.  By the Notice of Appeal filed on 29 April 2025, the applicant stated the following in summary :

1)  The applicant will be at risk of being harmed and killed if he returns to Vietnam because the police/financial institute are willing to kill people to satisfy their anger;

2)  Internal relocation is not feasible;

3)  It is quite possible for the police to locate the applicant’s residence;

3)  The Immigration Department did not consider his human rights;

4)  The applicant seeks asylum in Hong Kong; and

5)  The applicant’s appeal is important.

7.  In his written submissions, the applicant stated the following in summary :

1)  It is the applicant’s fundamental right not to be subjected to torture: ST v Director of Immigration [2014] 4 HKLRD 277;

2)  The Decision has a significant effect on the applicant’s torture claim;

3)  High standards of fairness is required for determining torture claims: Secretary for Security v Prabakar [2005] 1 HKLRD 289;

4)  Appropriate standard of fairness depends on an examination of all aspects relating to the decision in question: R v Home Secretary ex parte Doody [1994] 1 AC 531 at 560D-G;

5)  The applicant’s life and limb are in jeopardy and high standard of fairness must be demanded;

6)  The Court should not usurp the function of the Secretary;

7)  The Court should determine non-refoulement cases with anxious scrutiny and rigorous examination: R v Home Secretary, Ex-Parte Bugdaycay [1987] 1 AC 514 at 531E-G;

8)  The applicant should be given every reasonable opportunity to establish his/her claim;

9)  The Adjudicator did not properly assess the applicant’s credibility;

10)  The Court has the power to interfere in a public body’s decision if it is Wednesbury unreasonable;

11)  The modified Wednesbury test is that of beyond the range of responses open to reasonable decision-maker: R v Ministry of Defense ex.p. Smith; and

12)  The Court of Appeal should set aside the Court of First Instance decision.

I.  Discussion

8.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

9.  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.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)].

10.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Leave Decision with sufficient particulars and specifics.

11.  However, nowhere in his Notice of Appeal nor written submission did the applicant identify any error committed by the Judge with specific particulars.  His assertions are all general, bare and vague allegations unsupported by specific particulars or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The Court will not usurp the role of the Board. Assessment of evidence, country of origin information materials, 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 are errors of law or procedural unfairness or irrationality in the decision of the Board.  No such error was demonstrated by the applicant.  Clearly, his assertions do not constitute viable grounds of appeal and lack substance.  We see no basis to interfere with the Leave Decision.

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