VU VAN BAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 1173/2025, [2026] HKCA 104

On Appeal From [2025] HKCFI 5799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1173 OF 2025

(ON APPEAL FROM HCAL NO 1402 OF 2020)

________________________

_____________________

_______________

J U D G M E N T

_______________

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Levy (“the Judge”) dated 5 December 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 1 March 2019 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 14 March 2017 rejecting his non-refoulement claim.

2.  The Applicant alleges that, if refouled to Vietnam, he will be harmed or killed by his creditor because he was unable to repay a loan owed to the creditor. The Applicant’s background, the basis of his claim, the findings of the Board and its reasons for dismissing the Applicant’s appeal against the Director’s decision have been set out in detail in the Board’s Decision, and referred to by the Judge in the Judge’s decision (see §§1 and 4 of the CALL-1 Form). We do not propose to repeat them here.

3.  The Judge’s reasons for dismissing the Applicant’s leave application are set out at §§6-11 of the CALL-1 Form. In gist, the Judge declined to extend time for the Applicant to file his leave application in the absence of any explanation provided by the Applicant for his substantial delay, and also in view of (i) the Applicant’s failure to advance any grounds of intended challenge against the Board’s Decision in either the Form 86 or his supporting affirmation, and (ii) his failure to show any errors of law or procedural unfairness or irrationality in the Board’s Decision. The Judge took the view that the Applicant’s intended challenge to the Board’s Decision was not reasonably arguable with realistic prospects of success.

THIS APPEAL

4.  In his Notice of Appeal filed on 11 December 2025, the Applicant repeats his claimed fear of harm from his creditor in his home country, and asserts that his creditor and the subordinates of his creditor disregard the law and are willing to kill people to satisfy their anger and ferocity. He disagrees with the Director’s assessment that he could move to another location in Vietnam to avoid his creditor for various reasons, and alleges that the Immigration Department did not consider his human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

5.  In his supporting affirmation filed on the same date, the Applicant states that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, but he fails to identify what that ground might be. He also states that he was informed that the Director and the Board “did not see the grounds reverse their decisions”, without giving any further explanation or particulars.

6.  In his written submissions lodged on 13 January 2026, the Applicant raises five grounds of appeal, which may be summarised as follows:

(1)  Ground 1 – The Board erred in holding that the Applicant’s creditor had not inflicted any grievous bodily harm on the Applicant and had no real intention of killing him other than to pressurise him to repay his loan. The Board failed to take into account the grievous bodily harm and mental suffering inflicted on him by his creditor.

(2)  Ground 2 – The Board failed to apply a high standard of fairness in holding that there was no state involvement in the private dispute between the Applicant and his creditor. The Board failed to adopt an active role to investigate into the Applicant’s case, or conduct an oral hearing of his appeal or invite him to make written submissions before the Board came to a decision.

(3)  Ground 3 – The Board failed to conduct an independent assessment of the Applicant’s claim in concluding that state protection would be available to him upon refoulement. The Board erred in relying on news which might not be reliable country of origin information (“COI”) to come to its decision.

(4)  Ground 4 – The Board was irrational in holding that there was no or no sufficient evidence to show that the physical injury and mental suffering of the Applicant had attained the requisite minimum level of severity of ill-treatment while acknowledging that the Applicant “had indeed been pummeled, bludgeoned and threatened with a death threat by his creditors” and conceding that “it was a horrid and terrible experience”.

(5)  Ground 5 – The Board failed to consider the undue hardship that the Applicant would face if he was to relocate to another city in Vietnam.

7.  The Applicant did not appear at the hearing of the appeal.

DISCUSSION

8.  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)).

9.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022, at §13. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

10.  The Applicant did not put forward any intended ground of judicial review in the Form 86 or his supporting affirmation below. He has given no explanation for his failure to raise the complaints now mentioned in his Notice of Appeal, supporting affirmation or written submissions. He is not entitled to raise those complaints in support of the present appeal.

11.  In any event, all the new points raised by the Applicant relate to matters falling within the province of the Director and the Board, and for the reasons given in §9 above, cannot give rise to any proper grounds for judicial review. Further, the Applicant’s complaints in the Notice of Appeal are directed at the Director’s decision. However, the Director’s decision is not reviewable because it has been overtaken by the Board’s Decision where the Board examined the Applicant’s non-refoulement claim afresh.

12.  The five grounds of appeal raised in the Applicant’s written submissions do not have merits. We shall deal with them briefly below.

13.  Grounds 1 and 4 can be taken together as they both concern the Board’s assessment of the evidence in considering whether or not the injury suffered by the Applicant had attained the requisite level of severity which would give rise to a real risk of harm under any of the applicable grounds for non-refoulement protection. It was the Applicant’s case before the Board that on one occasion, his creditor and the subordinates of his creditor punched him several times on his chest, threatened him with a gun and stated that they would not let him have a good time (see §9 of the Board’s Decision). At the hearing before the Board, the Applicant only recalled that he was once threatened by his creditor with a gun, but not any other details relating to the assault. The Board formed the views that (i) the Applicant’s evidence was not credible and he was not a witness of truth, and (ii) even on his own evidence, he was never seriously injured (§§21 and 22). The Board did not find that the Applicant had been “pummeled, bludgeoned and threatened with a death threat by his creditors” as alleged by the Applicant under Ground 4. The Applicant’s complaint that the Board ought to have given him an opportunity to put forward further arguments and submissions to fully present his case has no validity. The Applicant has advanced nothing of substance before this Court which would have advanced his case further.

14.  In respect of Ground 2, the Applicant failed to produce any evidence before the Board to show that there was any state involvement in the dispute between him and his creditor, or that the police in Vietnam had ever refused to take any action to protect him from his creditor (see §§29-32 of the Board’s Decision). The Applicant alleges that the Board failed to take an active role to investigate into the issue of state involvement contrary to the high standard of fairness required for determining his claim. However, the high standard of fairness does not mean that the Applicant can simply sit back, or does not bear the burden of proving his case. On the available evidence, the Board was entitled to find that there was no state involvement in the dispute between the Applicant and his creditor.

15.  Under both Grounds 2 and 3, the Applicant complains that he was deprived of the opportunity to make submissions, either orally or in writing, to advance his case in the appeal before the Board[1]. This complaint has no validity. The Applicant testified at the hearing before the Board on 3 December 2018 (see §5 of the Board’s Decision), and was given a proper opportunity to present his case. We consider the assessment of the Applicant’s claim by the Board was thorough and fair overall.

16.  In respect of the reminder of Ground 3, the Applicant’s complaint that the Board failed to independently evaluate the COI relied on by the Board is a bare assertion. The fact that the Board had not spelt out the details of the COI it had considered does not mean that the Board had not independently evaluated the relevant materials. In any event, the Applicant’s claim was rejected by the Board based on the incredibility of his case, and his complaint about the Board’s consideration of COI does not assist him.

17.  Lastly, in respect of Ground 5, the Applicant’s complaint about the Board’s consideration of the viability of internal relocation has no merit. The Board did not conclude that internal relocation was a viable option to the Applicant. It took the view that it was not necessary to consider this issue because the Applicant had failed to show that he would face a real risk of serious harm from his creditor if he was to return to Vietnam (see §§70-72 of the Board’s Decision).

18.  In passing, we note that the Judge mistakenly stated that the Board found internal relocation was reasonably available to the Applicant (see §8 of the CALL-1 Form). This mistake does not, however, affect the Judge’s overall reasoning for refusing to grant leave to apply for judicial review.

19.  In all, the Applicant has failed to identify or show 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.

20.  The Applicant’s appeal has no merit, and is dismissed.

21.  This judgment is written in English although the respective decisions by the Director and the Board are written in Chinese, because the Applicant’s Notice of Appeal, supporting affirmation and written submissions are all written in English. If required, the Applicant may make an appointment with the clerk to this Court for an oral interpretation of this judgment in the Applicant’s preferred language at a mutually convenient time in the Court’s premises.