RE NGUYEN TIEN DAT

CACV 169/2026 , [2026] HKCA 499

On appeal from [2026] HKCFI 981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 169 OF 2026

(ON APPEAL FROM HCAL NO. 1346 OF 2025)

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JUDGMENT

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Hon Chu Ag CJHC (giving the Judgment of the Court):

1.  By a notice of appeal filed on 25 February 2026, the applicant seeks to appeal the decision of Deputy High Court Judge Lung (“the Judge”) given on 13 February 2026 ([2026] HKCFI 981) refusing to give him leave to apply for judicial review. The applicant’s intended judicial review is against the decision dated 30 May 2025 of the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 31 October 2024 which rejected his non‑refoulement protection claim.

2.  The applicant had consented to the Court of Appeal disposing of the appeal on the papers without an oral hearing.  On 9 March 2026, he filed a Request for dismissal of the notice of appeal.       

3.  The applicant is a Vietnamese national who was born in 2000.  He entered Hong Kong illegally and was arrested by the police on 24 June 2024.  He subsequently raised a non-refoulement claim based on a fear of being harmed or killed by a loan shark and his associates due to his inability to repay two loans.  The basis and the evidence of his claim were set out in [23] to [51] of the Board’s decision, which can be accessed at: https://legalref.judiciary.hk/doc/ judg/html/vetted/other/en/2025/ HCAL001346_2025_files/the_Board's_Decision.pdf.  We will not repeat them.

4.  The Director rejected the applicant’s claim having regard to the torture risk[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4].   

5.  The applicant’s appeal against the Director’s decision was heard by the Board on 3 February 2025.  The Board dismissed the appeal for the reasons given in [76] to [94] of its decision.  In gist, the Board accepted that the applicant was subjected to threats of violence from his creditor, but found the evidence insufficient to establish a real risk that the applicant would be subjected to torture or CIDTP, ill-treatment or persecution, death penalty or deprivation of life.  The Board also considered state protection and internal relocation alternatives were reasonably available, which would negate or reduce any risk of harm that the applicant might face.  The Board concluded that the applicant failed to prove his entitlement to non-refoulement protection under any of the applicable grounds.

6.  The applicant filed a Form 86 and an affirmation on 12 June 2025 to seek leave to apply for judicial review against the decision of the Board.  His grounds for challenging the Board’s decision were that the Board (1) failed to consider his right to life; (2) over relied on the country-of-origin information without considering his personal background and experience; and (3) was procedurally unfair in requiring him to respond to questions that he was not in a position to answer.    

7.  The Judge dealt with the leave application on paper.  By a Form CALL-1 dated 13 February 2026, the Judge dismissed the application.  In sum, the Judge regarded the applicant’s grounds to be bare assertions unsupported by evidence and could not amount to valid reasons to challenge the Board’s decision, and concluded that the intended judicial review had no realistic prospect of success. 

8.  The applicant appealed the Judge’s decision to this court.  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; and (3) the Director has disregarded the applicant’s human right. 

9.  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, Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. 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.

10.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

11.  We are of the view that what was stated in the notice of appeal do not amount to viable grounds of appeal.  Importantly, the applicant has not identified any error in the Judge’s rejection of his grounds for challenging the Board’s decision.  Moreover, the grounds in the notice of appeal had not been raised before the Judge.  It is not open to the applicant to put forward new grounds in an appeal especially when they are fact-sensitive.  In any event, there is no evidence to support the assertions. 

12.  As the applicant’s appeal has no merits and in light of his request for dismissal of his appeal, we dismiss the appeal.