RE NGUYEN THI HOA

CACV 439 /2024, [2025] HKCA 129

On appeal from [2024] HKCFI 2582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 439 OF 2024

(ON APPEAL FROM HCAL NO. 1984 OF 2019)

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JUDGMENT

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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 Lung (“the Judge”) given on 10 October 2024^[1] refusing to give her leave to judicially review the decision the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decision of the Director of Immigration (“the Director”) which rejected her non‑refoulement protection claim.

2.  Despite directions given by the Court, the applicant did not lodge any written submission to support the appeal.  She had consented to the Court of Appeal disposing of the appeal on the papers without an oral hearing.      

The applicant’s claim

3.  The applicant is a Vietnamese national aged 36.  She surrendered to the Immigration Department on 3 July 2013, after entering Hong Kong illegally.  She subsequently raised a non-refoulement claim based on fear of being harmed or killed by some triad members because she was not able to pay for the dangerous drug that her deceased husband had obtained from them.  Her claim was set out in details in [6] of the Director’s decision. 

4.  In gist, the applicant claimed that in 2008 her husband was murdered.  A few days after that, some triad members demanded her to pay for the dangerous drugs that her husband had obtained from them.  When she indicated she had no money, they threatened to make her take drugs and kill her if she did not repay her husband’s debt.  Fearing for her personal safety, she fled to mainland China from where she sneaked into Hong Kong.           

The Director’s and the Board’s decisions

5.  By a Notice of Decision dated 3 October 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 7 May 2019.  By a decision given on 12 July 2019 dismissed the appeal.      

7.  In gist, the Board did not accept the applicant’s evidence, finding that it was different in material aspects from the information she gave during the screening interview.  The Board also considered that even on her evidence, she only had one encounter with the triad members during which she was slapped, and this did not amount to ill-treatment or torture.  There was thus no evidence to show the applicant would face any risk of ill-treatment or torture.  The Board further found state protection to be reasonably available, which would reduce any risk of harm that the applicant might face.  The Board concluded that the applicant failed to prove, both on the facts and in law, her entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

8.  The applicant filed a Form 86 and an affirmation on 15 July 2019 to seek leave to apply for judicial review against the decision of the Board.  Other than outlining the factual basis of her claim in the supporting affirmation, the applicant did not provide any grounds for seeking relief. 

9.  The Judge heard the leave application at a hearing on 11 September 2024.  The applicant did not attend the hearing.  By a Form CALL-1 dated 10 October 2024, the Judge dismissed the application.  The Judge held that the applicant failed to put forward reasonable grounds to challenge the decisions of the Director and the Board, there was no error of law, irrationality or procedural unfairness in the Board’s decision, and the intended judicial review therefore had no reasonable prospect of success. 

The appeal

10.  By a notice of appeal dated 21 October 2024, the applicant appealed the Judge’s decision to this court. 

11.  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 her creditor if she returns to Vietnam; (2) internal relocation is not feasible because the applicant will face many difficulties and obstacles, she will be disadvantaged in the labour market and she 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. 

12.  The applicant also filed an affirmation in which she 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

13.  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.

14.  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, her assertion that she will be harmed or killed if she returns to Vietnam has no factual foundation and cannot stand.  Likewise, her assertion that her 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. 

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