RE PHAM HUU QUYET

CACV 104/2026, [2026] HKCA 729

On Appeal From [2026] HKCFI 410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 104 OF 2026

(ON APPEAL FROM HCAL 1237/2021)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge (Non-refoulement Claims) Lewis Law (“the Judge”) dated 3 February 2026[1] (“the Leave Decision”) refusing to grant leave for the applicant to apply for judicial review. The intended judicial review[2] was that of the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 20 August 2021 (“the Board’s Decision”) whereby the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 January 2021 rejecting the applicant’s non-refoulement claim was dismissed.

2.  The applicant is a Vietnamese national. His personal background, basis of claim and the Board’s reasons were set out in the Board’s Decision[3] as well as the Leave Decision at [1] and [3]. They will not be repeated.

3.  The applicant did not request for an oral hearing of the leave application. After considering the documents filed by the applicant, the Judge dismissed the application for the reasons stated at [4] of the Leave Decision.

Appeal to this court

4.  In his Notice of Appeal filed on 9 February 2026, the applicant stated that as he has not “arranged for a repayment of the debt” to his creditor in Vietnam, his life would be seriously threatened, should he be refouled. He also stated that internal relocation in Vietnam to avoid the pursuit of the creditor was infeasible as there would be many difficulties and obstacles faced by him in a new location. He complained that the Immigration Department did not consider his human rights under various statutes and international instruments such as the International Covenant on Civil and Political Rights, but without identifying the provisions.

5.  In his written submission dated 13 March 2026, the applicant advanced 5 grounds of appeal effectively criticising the Board’s assessment of the evidence and factual findings. In essence, he argues that the Board erred in concluding that (i) the creditors did not inflict “serious injury” or “grievous bodily harm” upon him; (ii) he did not know much about the background of his creditors; (iii) the creditors were unconnected to State actors; (iv) there was state protection available to him (by the Board’s reliance on unreliable Country of Origin Information and e-newspapers); (v) that the harm suffered by him at the hands of the creditors did not reach the required minimum level of severity; and (vi) it was viable for him to internally relocate in Vietnam in order to minimise the risk of harm (if any).

6.  We heard the appeal on 1 April 2026, at which the applicant appeared in person with the assistance of a Vietnamese/English interpreter. At the hearing, the applicant confirmed he had nothing to add to his written submission.

Discussion

7.  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]. 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.

8.  The Court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review. Nor is an appeal 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 judge or was otherwise plainly wrong.

9.  In this appeal, assertions by the applicant of fear, if refouled, do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. In any event, the assertions have been considered by the Director and the Board. The assessment of evidence, Country of Origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

10.  In considering the applicant’s claim that his life would be in danger at the hands of his creditor, should he be refouled, the Board, on the evidence, rejected the applicant’s claim that he was assaulted by the creditor in 2017 and 2020 (Board’s Decision, [41]-[45]). Further, the Board was of the view that the applicant’s evidence and his version of events were incredible and were unsubstantiated on the facts (Board’s Decision, [50]-[54]). Further the Board was of the view that adequate state protection and suitable options of internal relocation were available to the applicant in order to minimise the risks of harm, if any.

11.  These were factual findings open to the Board on the evidence, which were considered by the Judge in the Leave Decision at [4]. We see no basis to interfere.

12.  In his submission, the applicant advanced contentions which were not raised by him in Form 86 or his supporting affirmation before the Judge. There is no reason why the applicant should be permitted to raise those new or elaborated grounds for the first time on appeal.

13.  Even assuming the contentions in the applicant’s written submission are considered, we see no merit in his complaint. That includes the Board’s alleged failure in drawing the applicant’s attention to certain factual issues and its alleged failure to afford him the opportunity to address it in evidence or submission (see applicant’s written submission, p.5, Ground 4). The applicant appeared at the hearing before the Board, and it was evident that he was given the opportunity to respond to relevant questions from the Board on the material issues before it. We see no basis for intervention.

14.  In the premises, whilst the applicant expressed his disagreement with the Judge, he failed to particularise and demonstrate how the Judge, as now alleged, erred in concluding that the Board had not acted unlawfully or procedurally unfairly in reaching its decision, or how such decision could be said to be Wednesbury unreasonable.

15.  There is no viable ground of appeal and no merit in the appeal. Accordingly we dismiss the appeal.