Case Details
DUONG THI THANH THUY AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
[2026] HKCA 1510 · CACV 1249/2025
Court of Appeal
CACV 1249/2025, [2026] HKCA 1510
On Appeal From [2025] HKCFI 5928
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 1249 OF 2025
(ON APPEAL FROM HCAL NO 1730 OF 2020)
__________________________
BETWEEN
| |Duong Thi Thanh Thuy |1st Applicant |
| |Nguyen Ha Vy |2nd Applicant |
| |Nguyen Minh Tu |3rd Applicant |
| |Nguyen Minh Quan |4th Applicant |
| |and | |
| |TORTURE CLAIMS APPEAL BOARD/ |Putative |
| |NON-REFOULEMENT CLAIMS PETITION OFFICE |Respondent |
| |and | |
| |DIRECTOR OF IMMIGRATION |Putative |
| | |Interested Party|
__________________________
Before: Hon Barma JA and Mimmie Chan J in Court
Date of Hearing: 18 August 2026
Date of Judgment: 1 September 2026
________________
J U D G M E N T
________________
Hon Mimmie Chan J (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge
KW Lung (“the Judge”) given on 17 December 2025[1] (“the Leave
Decision”) refusing to grant leave for the applicants to apply for
judicial review. The intended judicial reviews were lodged by:
a) the 1st to 3rd applicants against the decision of the Torture
Claims Appeal Board/adjudicator of the Non-Refoulement Claims
Petition Office (“the Board”) dated 5 August 2020 (“the
Board’s 1st Decision”) dismissing the 1st to 3rd applicants’
appeals against the decision of the Director of Immigration
(“the Director”) dated 21 June 2018 rejecting the 1st to
3rd applicants’ non-refoulement claims; and
b) the 4th applicant against the decision of the Board dated
6 July 2023 (“the Board’s 2nd Decision”) dismissing the
4th applicant’s appeal against the decision of the Director
dated 2 March 2020 dismissing the 4th applicant’s non-
refoulement claim.
Background
2. The 1st applicant is a national of Vietnam. She is the mother of
the 2nd to 4th applicants. The 2nd applicant (the 1st applicant’s
daughter) and the 3rd and 4th applicants (the 1st applicant’s
sons), who were respectively born in Hong Kong on 30 December 2015,
22 July 2017 and 18 April 2019, are minors. The 2nd to 4th
applicants’ non-refoulement claims (as well as their leave
applications in the Court below and the present appeals) were
lodged by the 1st applicant on their behalf.
3. The background to this case, the applicants’ bases to their claims
and the reasons given by the Board in its 1st and 2nd Decisions
have been set out therein[2] and summarised by the Judge in the
Leave Decision at [13]-[18], which will not be repeated.
4. After considering the documents filed as well as the submissions
made by the 1st applicant (on behalf of herself and the other
applicants) at the hearing of the leave applications, the Judge
dismissed the applications for the reasons stated in the Leave
Decision.
Appeal to this court
5. By a Notice of Appeal dated 30 December 2025, the 1st applicant (on
behalf of herself and the other applicants) stated:
“We do not agree with the decision of the Court of First
Instance. Our life is not safe in our home country.”
6. In the 1st applicant’s written submissions dated 3 June 2026
(lodged also on behalf of the other applicants), she repeated the
dangers she may face should she be refouled, such as the risk of
her being killed by her “enemies” and that they are apparently
“controlling the power of government” in Vietnam. The 1st
applicant also contended inter alia, without elaboration or
particulars, that (i) the Leave Decision was unreasonable; (ii) the
Judge was wrong as a matter of law for not having applied “the
principle of irrationality” and “the principle of procedural
unfairness”; (iii) high standards of fairness were not adhered to;
and (iv) there was irrationality in the Board’s Decisions as
regards whether state protection was available to the applicants.
7. We heard the appeal on 18 August 2026, at which the applicants
appeared in person. At the hearing, the 1st applicant submitted
that she is a single mother and that she has broken up with her ex-
boyfriend. She submitted that if the 2nd to 4th applicants were
refouled, they would be unable to adapt to life in Vietnam as they
have been educated in Hong Kong. She further submitted that her
youngest son suffers from some form of a brain disease, and
attempted to hand up medical records in support of the same.
However, as those records have not been placed before the Judge in
the Court below, we will not consider the same on appeal, but we
will take note of her submission on her son’s condition.
Discussion
8. As this court has often stated, an appeal to the Court of Appeal is
not a fresh application for judicial review. It is necessary to
identify some error on the part of the judge that would justify
this court in intervening: see Nupur Mst v Director of Immigration
[2018] HKCA 524 at [14]. 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. An
appeal is not the occasion for regurgitating arguments advanced and
rejected by the judge or for running arguments which could and
should have been raised but were not raised before the judge. In
the determination of an appeal, the Court of Appeal focuses on the
decision of the judge and the court will only reverse that decision
if an appellant could demonstrate that the judge made errors of law
or failed to take account of relevant matters already placed before
the court or was otherwise plainly wrong.
9. In our view, the 1st applicant has wholly failed to identify any
error on the part of the Judge and thus failed to raise any viable
ground of appeal.
10. In the present case and in respect of the 1st applicant’s claim,
the Board found that the primary threat of harm posed to the 1st
applicant (as claimed by her) from her ex-boyfriend (by reason of a
debt she owed to him) was not substantiated on the facts, as,
although threats of assault have been issued by him to the 1st
applicant, no physical harm has ever come to the 1st applicant at
the hands of her ex-boyfriend. Moreover, the Board found that the
risk of harm was localised to her home location, and that state
protection was available to the 1st applicant in order to minimise
the risk of harm, if any.
11. These were factual findings and conclusions open to the Board on
the evidence, and were sufficiently canvassed and considered by the
Judge in the Leave Decision at [13]-[15] and [19]-[28]. We see no
basis to interfere.
12. Accordingly, the 1st applicant has failed to demonstrate how the
Board had acted unlawfully or procedurally unfairly in reaching its
1st Decision with regards to her appeal/claim, or how such Decision
could be said to be Wednesbury unreasonable.
13. It is however necessary for this court to consider the positions of
the 2nd to 4th applicants separately, as they are minors and have
not been legally represented in these proceedings as required under
Order 80, rule 2 of the Rules of the High Court (Cap 4A). See
Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture
Claims Appeal Board/Non-Refoulement Claims Petition Office [2020]
HKCA 971.
14. We note that despite previous directions made by the Registrar of
Civil Appeals on 7 January 2026, no steps have been taken to comply
with the requirements under Order 80, rule 2. Accordingly,
directions were given by the Registrar on 10 April 2026 regarding
the conduct of the appeals, with the appeals subsequently referred
to this Court for determination. On 18 May 2026 however, the
applicants belatedly applied for legal aid and filed Memoranda of
Notification of an Application for Legal Aid. Their applications
were rejected by the Director of Legal Aid on 28 July 2026.
15. We now turn to the 2nd to 4th applicants’ appeals.
16. The proper approach to deal with children’s non-refoulement claims
has been considered by the Court of Appeal in Fabio Arlyn Timogan
and Re Jasvir Singh [2021] HKCA 53 which established that:
a) Non-refoulement claims by children, even if based on the same
set of primary facts, are separate from the claims advanced by
their parents and need to be considered as such having regard
to the personal circumstances of the children;
b) Even if the claims were based on the same set of primary
facts, it would be an error of law if the decision-maker
simply decided all the claims as if they were one composite
claim without giving separate consideration to the personal
circumstances of each claimant separately. It does not
necessarily follow from the dismissal of the claim by a parent
that the children’s claims could be dismissed without further
consideration of their personal situations;
c) Ill-treatment which does not reach a level constituting
persecution in the case of an adult may do so in the case of a
child.
17. The position is therefore that while the reality remains in the
majority of cases involving minors that the factual basis of the
minor’s claim would be dependent on or even entirely rest upon that
of the parent’s, regard must be had to the personal circumstances
of the minor (and any risks of harm posed to the minor) by the
decision-maker. In this case, like the majority of similar cases
involving minor applicants, the basis of the 2nd to 4th applicants’
perceived fear or risk of harm upon refoulement rested upon the
primary case of their mother’s.
18. We shall first proceed to determine the appeals of the 2nd and 3rd
applicants, before dealing with that of the 4th applicant.
19. The 1st applicant’s case, as presented to the Board on behalf of
the 2nd and 3rd applicants, was that her ex-boyfriend has
threatened to harm or kill them should they return to Vietnam
(Board’s 1st Decision, [12]). She also claimed, inter alia, that
internal relocation within Vietnam would be difficult, financially
or otherwise, by reason of her having to care for the 2nd and 3rd
applicants (Board’s 1st Decision, [13]-[14]).
20. In the application below, the Judge noted that the 2nd and
3rd applicants were not legally represented before the Board, and
he also took the view that the Board in its 1st Decision failed to
separately consider the claims of the 2nd and 3rd applicants and/or
risks of harm posed to them upon refoulement (Leave Decision,
[23]). However, the Judge concluded that as the Board’s 2nd
Decision (which pertained to the 4th applicant’s claim) had duly
considered the “minor issues in Vietnam”, the same considerations
would “equally [apply] to [the 2nd and 3rd applicants]” (Leave
Decision, [23]).
21. With respect to the Judge, we do not agree with his reasoning.
22. As mentioned above, the principles set out in Fabio obligates the
decision-maker, in this case the Board, to separately consider and
assess the situation and risks of minor applicants upon
refoulement. It would be wrong in principle to suggest that merely
because the Board had adequately considered minor specific issues
or risks in respect of the 4th applicant and had drawn conclusions
thereto, that the same conclusions must also apply to the 2nd and
3rd applicants notwithstanding that there has been no separate
consideration by the Board of their own individual circumstances.
23. Notwithstanding our disagreement with the Judge’s reasoning at [23]
of the Leave Decision in respect of the 2nd and 3rd applicants
however, having considered and subjected the Board’s 1st Decision
to anxious scrutiny, we are of the view that despite the Board’s
very brief discussion of the circumstances and risks specifically
posed to the 2nd and 3rd applicants, it cannot be said that the
Board had altogether neglected to discharge its duty to separately
consider their claims.
24. For instance, at [42] and [43] of the Board’s 1st Decision, the
Board noted that the 2nd and 3rd applicants, who were born in Hong
Kong, have never been threatened nor harmed by the 1st applicant’s
ex-boyfriend or his associates, and thus the risk of harm, of the
required minimum level of severity, had not been established.
Further, at [62] and [63], the Board considered that state
protection was available to the 2nd and 3rd applicants in order to
minimise the risk of harm (if any), and that the 1st applicant,
being an able-bodied adult, would be capable of caring for and
internally relocating with the 2nd and 3rd applicants.
25. The Board therefore, on balance, cannot be said to have failed to
consider the circumstances of the 2nd and 3rd applicants
separately, although as mentioned above, the Board’s reasoning in
this respect was undesirably brief and merited more elaboration and
discussion.
26. As for the 4th applicant’s appeal, having considered the Board’s
2nd Decision and subjected the same to anxious scrutiny, we are of
the view that the Board has adequately considered the position of
the 4th applicant as a minor in its dismissal of his appeal. The
Board was alive to, and expressly referred to, the principles
contained in Fabio and Re Jasvir Singh (Board’s 2nd Decision, [55]-
[57]). Separate consideration was given to the 4th applicant’s
wellbeing as a minor upon refoulement, as well as the protection
and suitability of him being brought up in Vietnam should he be
refouled (Board’s 2nd Decision, [93]-[106]). The Board thus cannot
be faulted in its conclusions reached in its 2nd Decision as
regards the 4th applicant’s claim.
27. For completeness, in the case of the 2nd to 4th applicants, we do
not consider there to be any indication that the merits of their
claim (or any underlying matter that may support minor-specific non-
refoulement grounds) had not been adequately explored before the
Judge due to the lack of legal representation.
28. Accordingly, the 2nd to 4th applicants have also failed to
demonstrate how the Board had acted unlawfully or procedurally
unfairly in reaching its 1st and 2nd Decisions with regard to their
appeals/claims, or how such Decisions could be said to be
Wednesbury unreasonable.
29. In the premises, the 1st to 4th applicants have advanced no viable
grounds of appeal against the Judge’s decision, and their appeals
are accordingly dismissed.
|(Aarif Barma) |(Mimmie Chan) |
|Justice of Appeal |Judge of the |
| |Court of First Instance |
The applicants appearing in person
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[1] [2025] HKCFI 5928
[2] Re the Board’s 1st Decision, see:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL00173
0_2020_files/the_Board's_Decision.pdf
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DUONG THI THANH THUY AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CA · [2026] HKCA 1510
This judgment