RE NGUYEN DINH TUONG

CACV 157 /2025, [2025] HKCA 425

On appeal from [2025] HKCFI 1043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 157 OF 2025

(ON APPEAL FROM HCAL NO. 3889 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Michael Wong (“the Judge”)  given on 18 March 2025 ([2025] HKCFI 1043)  refusing to give him leave to judicially review the decision the Torture Claims Appeal Board (“the Board”)  dismissing his appeal against the decision of the Director of Immigration (“the Director”)  which rejected his non-refoulement protection claim.

2.  The applicant has consented to the Court of Appeal disposing of the appeal on the papers without an oral hearing.  Despite directions given by the Court, he has not lodged any written submission to support the appeal.   

The applicant’s claim

3.  The applicant is a Vietnamese national aged 30.  He entered Hong Kong illegally and was arrested on 2 August 2019.  He subsequently raised a non-refoulement claim based on fear of being harmed or killed by his creditor due to his inability to repay his debt.  His claim was set out in details in [7] of the Director’s decision. 

4.  In gist, the applicant claimed that in 2018 he obtained a loan from a moneylender in connection with his chicken farm.  After his stock was wiped out by a plague, he was unable to keep up with the repayment.  Between October and December 2018, there were four occasions on which the moneylender and his followers went to the applicant’s home, damaged his furniture and assaulted him with iron pipes.  They also threatened to kill him if he did not make repayment.  Fearing for his personal safety, he fled to Shenzhen from where he sneaked into Hong Kong.   

The Director’s and the Board’s decisions

5.  By a Notice of Decision dated 26 September 2019, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. 

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 29 November 2019.  By a decision given 6 December 2019, the Board dismissed the appeal.  In summary, the Board did not accept the applicant’s evidence, finding it unreliable and incredible.  The Board also considered, for the reasons given in [5] to [29] of the decision, that even on the applicant’s case, it did not meet the legal requirements of any of the applicable grounds.  The Board further found internal relocation alternatives were reasonably available, which would reduce any risk of harm that the applicant might face.  

The Judge’s decision

7.  The applicant filed a Form 86 and an affirmation on 30 December 2019 to seek leave to apply for judicial review against the decision of the Board.  Other than stating in the supporting affirmation that he could not return to his home country because his life was in danger, the applicant did not provide any substantive grounds for seeking relief. 

8.  The Judge dealt with the leave application on the papers.  By a Form CALL-1 dated 18 March 2025, the Judge dismissed the application.  In sum, the Judge held that there was no error of law, irrationality or procedural unfairness in the Board’s decision, and the intended judicial review therefore had no realistic prospect of success. 

The appeal

9.  By a notice of appeal dated 26 March 2025, the applicant appealed the Judge’s decision to this court. 

10.  The grounds of appeal in the notice of appeal stated that: (1)  the creditors and gangsters in Vietnam are cruel, violent and will readily kill people; the applicant will be tortured, beaten or killed by his creditor if he returns to Vietnam; (2)  internal relocation is not feasible because the applicant will face many difficulties and obstacles, he will be disadvantaged in the labour market and he may not be able to adapt and make a living; (3)  the gangsters will be able to track the applicant as they have a nationwide network and help from the corrupt government officials and police; and (4)  the Director has disregarded the applicant’s human right. 

11.  The applicant also filed an affirmation in which he stated that there was a good ground of appeal that was not being considered at the leave application stage.  We will not consider this affirmation as no leave has been given for the applicant to file new evidence in this appeal.  In any event, the affirmation only makes a vague assertion and has not identified what is the ground of appeal referred to.

Our reasons for decision

12.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.

13.  We are of the view that the matters stated in the notice of appeal do not constitute viable grounds of appeal: 

(1)  The Board had found the applicant’s evidence incredible and rejected it in its entirety.  The applicant has not provided any grounds for challenging the Board’s findings.  In the circumstances, the assertion that he will be harmed or killed if he returns to Vietnam has no factual foundation and cannot stand.  Likewise, the assertion that his human right has not been considered must also fail.  

(2)  The Board also found, as an alternative, that even on the applicant’s evidence, the legal requirements under the applicable grounds were not met.  Again, the applicant has not advanced any ground to challenge the Board’s assessment of the future risk of harm or the conclusions of the Board. 

(3)  Importantly, the applicant has not identified any error in the Judge’s reasoning and decision.  Moreover, the assertions made in the notice of appeal had not been raised before the Judge.  It is not open to the applicant to put forwards new grounds in an appeal especially when they are fact-sensitive.  In any event, there is no evidence to support the assertions.   

14.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.