TRAN DUC MINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 179/2025, [2025] HKCA 791

On Appeal From [2025] HKCFI 852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2025

(ON APPEAL FROM HCAL NO 2629 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”)  on 25 March 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 9 August 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 24 Janaury 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1977.  He claimed to have entered Hong Kong illegally from Mainland China on 20 July 2015.  The next day, he surrendered to the Immigration Department and lodged his non-refoulement claim.  The applicant’s claim was made on the basis that if he returned to Vietnam, his creditor (Dung)  would harm or kill him due to his inability to repay a loan.  The factual background of the applicant’s claim was set out at [9] to [20] of the Board’s decision.

3.  By notice of decision dated 24 January 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 10 May 2019, during which the applicant gave evidence and answered questions from the Board.  The Board rejected the applicant’s account for lack of credibility, because the version of events from his previous statements and his submissions at the oral hearing were different in relation to the attack in May 2015, the attack in July 2015 and the Mong Cai encounter.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Vietnam.  It found there was in fact no real risk of harm if the applicant returned to Vietnam, because it rejected the applicant’s evidence.  Further, even on the applicant’s own case, the dispute was of a personal nature without any state involvement, the risk of harm did not reach the minimum level of severity, and reasonable state protection would be available to the applicant. As the Board did not find that the applicant had a well-founded fear of persecution in his own country, it did not consider the issue of internal relocation.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Vietnam.  By its written decision dated 9 August 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 10 September 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply repeated the basis of his claim for non-refoulement protection and annexed the Board’s decision.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 25 March 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [12] to [18] of the Judgment as follows:

“ 12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1)  … …Assessment of evidence and COI materials and 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.’

15. The Board, for the reasons given above, found that the applicant was an unreliable witness and it rejected his evidence in support of his claim.

16. There is no valid ground from the applicant to challenge the Board’s Decision.

17. There is no reason that the Court should interfere with the Board’s finding of the facts.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

Appeal to this Court

9.  On 7 April 2025, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he would be beaten or even killed by creditors and gangsters, that the Director failed to appreciate or properly assess the viability of internal relocation within Vietnam for him, and that the Director failed to consider his human rights. 

10.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

11.  The applicant has not lodged any written submissions.

Discussion

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in 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]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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 decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, 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.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it rejected the applicant’s evidence.  In any event, the applicant’s dispute was a personal matter without any state involvement, the risk of harm did not reach the minimum level of severity, and reasonable state protection would be available to the applicant.  Therefore, the Board concluded that it was not necessary to consider or make further findings in relation to internal relocation.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision. As for the ground advanced relating to human rights, it consists of a mere general and bald assertion regarding the decision of the Director without any particulars.  It does not constitute a viable ground of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

15.  The applicant’s appeal is accordingly dismissed.