LE QUOC DAT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 96/2026, [2026] HKCA 600

On Appeal from [2026] HKCFI 587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 96 OF 2026

(ON APPEAL FROM HCAL NO 670 OF 2021)

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JUDGMENT

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Hon H. Au-Yeung J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order (“the Dismissal Order”) of Deputy High Court Judge To (“the Judge”) dated 29 January 2026 by which his application for leave to apply for judicial review (“the Leave Application”) against the decision of the Torture Claims Appeal Board (“the Board”) dated 27 April 2021 (“Board’s Decision”) was dismissed. By that decision, the Board upheld the decision of the Director of Immigration (“the Director”) rejecting the applicant’s non-refoulement claim.

2.  The applicant is a national of Vietnam.  The basis of his non-refoulement claim had been set out in detail in the Board’s Decision, which may be viewed online via the hyperlink contained in footnote 1 of the CALL-1 Form.  In gist, the applicant claims that if he returns home, he will be killed by his creditor because of an outstanding loan.

3.  In [9] to [10] of the CALL-1 Form, the Judge gave detailed reasons for refusing the Leave Application.

4.  By a Notice of Appeal filed on 4 February 2026 and the affirmation filed on the same day, the applicant appeals against the Judge’s decision.  In the Notice of Appeal, the applicant contends that:

(1)     The ruling that he had no chance of success in reviewing the Board’s Decision and the Director’s Decision was “unsatisfactory”;

(2)     His life would be seriously threatened if he returned to Vietnam as relocation is infeasible; and

(3)     The Immigration Department did not consider his human rights.

5.  In the affirmation filed in support of the Notice of Appeal, the applicant asked this Court to exercise its discretion to allow the appeal.

6.  This appeal was scheduled to be heard on 26 March 2026.  However, the applicant has failed to lodge any skeleton argument in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 4 February 2026.  Accordingly, the applicant is deemed to have waived his right to have an oral hearing of the appeal and elected to have the appeal disposed of on paper.  Having considered the documents before us, we consider that it is appropriate to deal with the applicant’s appeal on paper without an oral hearing.

7.  The general approach of this Court in dealing with appeals in non-refoulement cases has been 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, this Court 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.  This Court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

8.  Further, 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].

9.  In respect of the grounds of appeal directed at the Board’s Decision and the Director’s Decision, we note that the matters in those grounds had never been raised in the Form 86 or the affirmation filed in support of the Form 86. The applicant has not given any reason why he should be allowed to raise these grounds for the first time at the appeal stage, nor can we find any good reason to allow him to do so.  We therefore do not allow the applicant to rely on those grounds and we place no weight on them.

10.  The applicant also contends that the Dismissal Order was unsatisfactory, but he has not identified any error allegedly committed by the Judge.  The Judge has explained at [10] of the CALL-1 Form that the Leave Application was dismissed for not having any identifiable ground for judicial review and the applicant has not addressed this observation by the Judge.  This ground is therefore without merit.

11.  In the premises, this appeal is hereby dismissed with no order as to costs.