PHAM THI HUYEN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 713/2025, [2026] HKCA 917

On appeal from [2025] HKCFI 3439

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 713 OF 2025

(ON APPEAL FROM HCAL NO. 3018 OF 2019)

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J U D G M E N T

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

INTRODUCTION

1.  This is the applicants’ appeal against the order of Deputy High Court Judge K.W. Lung (“the Judge”)  dated 27 August 2025 (“the Order”)  refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  30 September 2019 (“the Board’s Decision”)  whereby the Board dismissed their appeals against the decisions of the Director of Immigration (“the Director”)  dated 1 March 2017 (“the Director’s 1^st Decision”)  and 15 March 2019 (“the Director’s 2^nd Decision”).

2.  The 1^st applicant (“A1”)  is the mother of the 2^nd applicant (“A2”), her daughter.  A1’s failure to comply with Order 80 rule 2 of the Rules of the High Court (Cap 4A)  was treated by the Judge as a mere irregularity without rendering A2’s application as a nullity.

BACKGROUND

3.  A1 is a national of Vietnam. She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she would be harmed or killed by her creditor named Nga and her subordinates because she was unable to repay her loans.  Her claim was dismissed by the Director. 

4.  A2 was born in Hong Kong in 2018.  However, she has not obtained permanent residency in Hong Kong.  A2’s non-refoulement claim was put on the same basis as A1.  The Director also dismissed A2’s non-refoulement claim. Their joint appeals against those decisions of the Director were rejected by the Board.  Details of the applicants’ claims and the Board’s reasons for rejecting the applicants’ appeals can be found in the Board’s Decision.

5.  The applicants’ joint application for leave to apply for judicial review was refused by the Judge and details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1.

GROUNDS OF APPEAL

6.  By a notice of appeal filed on 9 September 2025, the applicants sought to appeal the Judge’s decision to this court.  The applicants reiterated their claims, and disputed the Director’s decisions, without advancing any substantive argument against the Judge’s decision.

7.  The appeal was scheduled to be heard on 16 April 2026. The applicants have failed to lodge any skeleton argument in support of their appeal in accordance with the directions given by the Registrar of Civil Appeals. Accordingly, the applicants are deemed to have waived their right to have an oral hearing of the appeal, and elected to have the appeal disposed of on paper.

DISCUSSION

A1

8.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

9.  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 below will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

10.  Regarding A1’s case, no error of law, procedural unfairness or irrationality in the decision of the Board was detected by the Judge or was pointed out by A1 apart from the bare assertions as stated in the notice of appeal. They do not constitute any viable grounds of appeal and lack substance. We see no basis to interfere with the Judge’s decision in refusing A1’s leave application. 

A2

11.  It is necessary for the Court of Appeal to consider the position of A2 separately as she is a minor, who was not legally represented in the proceedings in the Court of First Instance.

12.  The proper approach to deal with children’s non-refoulement claims has been established by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and in Re Jasvir Singh [2021] HKCA 53.

13.  Having considered paragraphs [18] – [22] of the Call-1 Form, it is evident that the Judge was aware of and applied the above legal principles and found no child-specific issue in A2’s claim.  Equally, we discern no material before us that may give rise to any minor-specific concern that relates to A2.

14.  The matters set out in the notice of appeal failed to identify any error on the part of the Judge when determining A2’s case. In our view, the notice of appeal contains no viable grounds of appeal in respect of A2.

15.  Therefore, there is no basis for this Court to interfere with the Judge’s refusal of leave in their cases.

DISPOSITION

16.  For the above reasons, the applicants’ appeal is devoid of merits.  We dismiss it accordingly.