RE NGUYEN KHAC CHUNG

CACV 278 /2025, [2025] HKCA 743

On appeal from [2025] HKCFI 1782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 278 OF 2025

(ON APPEAL FROM HCAL NO. 3781 OF 2019)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s appeal against the judgment of Deputy High Court Judge Philips Wong (“the Judge”) given on 2 May 2025 ([2025] HKCFI 1782) dismissing his application for leave to apply for judicial review. The intended judicial review was in respect of a decision of the Torture Claims Appeal Board (“the Board”) said to be dated or made on 8 September 2019.

2.  The applicant had 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. 

3.  The applicant is a Vietnamese national aged 38.  On 27 September 2016, he surrendered to the Immigration Department after entering Hong Kong illegally.  He was repatriated to Vietnam on 13 December 2016.  He later re-entered Hong Kong illegally and was arrested by the police on 21 May 2017 for theft.  He subsequently raised a non-refoulement claim based on fear of being harmed or killed by his creditor who has a triad background due to his inability to repay his debt.  His claim was set out in details in [6] of the Director’s decision dated 21 November 2017. 

4.  In gist, the applicant claims that he borrowed from the creditor to start a noodle business, but was unable to keep up with the repayments.  Since 2014, the creditor and his people made repeated demands for repayment, threatened and assaulted the applicant on several occasions.  The creditor and his people continued to look for him after his repatriation in December 2016.

5.  The Director of Immigration (“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.  By a notice of appeal dated 28 November 2017 and received by the Board on 1 December 2019, the applicant appealed the Director’s decision to the Board. An oral hearing to deal with the appeal was scheduled for 9 September 2019. 

7.  By a letter dated 9 August 2019, which was written in the Vietnamese language and addressed to the Director, the applicant requested to withdraw his appeal.  The applicant explained in the letter that his matter had been satisfactorily resolved, he would not be pursued by the triad people and he also wished to return to Vietnam to reunite with his family.  The applicant’s letter was received by the Director on 13 August 2019, and it was forwarded to the Board. 

8.  By a letter dated 16 August 2019, the Board informed the applicant that it was satisfied that his application to withdraw the appeal was freely sought, he fully understood the consequences of the withdrawal and there was good reason for his proposed withdrawal.  The letter further stated that the Board had granted the request to withdraw and dismissed the applicant’s appeal, with the result that the appeal has been disposed of and finally determined.      

9.  On 18 December 2019, the applicant filed a Form 86 and an affirmation to seek leave to apply for judicial review against a decision of the Board said to be given on or dated 8 September 2019.  He did not provide any grounds for seeking relief.  He only stated in the affirmation that he disagreed with the Board’s decision, he wanted to apply for judicial review, he could not return to Vietnam and his life would be in danger if he were to return there. 

10.  The Judge heard the leave application at a hearing on 14 March 2025.  At the hearing, the Judge pointed out to the applicant that the court was not aware of the existence of a Board decision issued on 8 September 2019.  The Judge also drew to his attention the Board’s letter to him dated16 August 2019.  In response, the applicant stated that he had applied to the Board to re-instate his appeal and insisted there was a decision of the Board issued on 8 September 2019.  He, however, was not able to provide a copy of the Board’s decision.

11.  Upon enquiries made by the court after the hearing, the Board confirmed that no decision or document was issued to the applicant on 8 September 2019.  The Board further provided to the court (1) two letters from the applicant to the Board dated 24 October 2019 and 11 November 2019 requesting to re-open his appeal; and (2) the Board’s reply letter dated 14 November 2019 refusing the applicant’s request to resume or reinstate his appeal for the reason that as a result of the dismissal of the appeal upon his application to withdraw the appeal, the Board was functus officio and did not have power or authority to deal any further with his appeal.      

12.  By a Form CALL-1 dated 2 May 2025, the Judge dismissed the application and gave her reasons at [11] to [13] as follows: 

“11. … it is clear that there was no decision issued by the Board on 8 September 2019 susceptible to be reviewed as alleged in the Form. The Leave Application shall be dismissed accordingly.

12. In so far as the Applicant is applying for leave to commence judicial review in respect of the Board’s refusal to “re-open” the Appeal, such application would be misconceived as the Board was correct in its view that it was functus: Re Raschpal Singh [2020] HKCA 978, at §§44-45; Re Ali Usman [2018] HKCA 955, at §25.

13.  Finally, in so far as the Applicant is applying for leave to commence judicial review in respect of the Director’s decision dated 21 November 2017, such application would also be misconceived: Re Raschpal Singh op. cit., at §§40-42.”

13.  By a notice of appeal dated 12 May 2025, the applicant appealed the Judge’s decision to this court. 

14.  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 the gangsters 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 find a job to support himself; (3) the gangsters will be able to track the applicant as they have a nationwide network and clandestine connections with corrupt government officials and police officers; and (4) the Director has disregarded the applicant’s human right. 

15.  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 even identified what is the ground of appeal referred to.

16.  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.

17.  We are of the view that the applicant’s appeal is unarguable.  First, the Board has informed the Court that it did not issue any decision relating to the applicant’s appeal on 8 September 2019.  Although the applicant asserts there is such a decision, he has not produced a copy of it or any document that can substantiate his assertion when the burden is on him to make good his case.  The Judge’s holding that the decision that the applicant seeks to judicially review does not exist cannot be faulted.  As such, the application for judicial review is bound to fail and that leave to apply for judicial review should be refused on this ground alone.

18.  Second, if the applicant’s intended judicial review is in connection with his request to re-open his appeal against the Director’s decision, given that his appeal had been dismissed and finally determined by the Board upon his request to withdraw the appeal, the Board would not have power to further deal with or re-open his appeal.  Accordingly, the Board did not err in refusing his request to re-open the appeal and the Judge is correct to refuse leave to judicially review the Board’s refusal to re-open the appeal.     

19.  Third, the matters stated in the notice of appeal do not constitute viable grounds of appeal.  They are simply irrelevant as the Board did not make any determination on the merits of the applicant’s non-refoulement claim.  Moreover, they are vague assertions not supported by any evidence.      

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