RE DONG XUAN CHUNG

CACV 71/2024 , [2025] HKCA 512

On appeal from [2024] HKCFI 588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 71 OF 2024

(ON APPEAL FROM HCAL NO. 1613 OF 2020)

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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):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”)  given on 23 February 2024 ([2024] HKCFI 588)  refusing to give him leave to judicially review the decision of 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 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 did not lodge any written submission to support the appeal.  

3.  The applicant is a Vietnamese national aged 36.  He entered Hong Kong illegally and surrendered to the Immigration Department on 9 September 2019.  He subsequently raised a non-refoulement claim based on a 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 [6] of the Director’s decision and succinctly summarized by the Judge in [3] to [10] of the Form CALL-1.  In gist, the applicant claimed that in about 2018 he borrowed money from a moneylender for his restaurant business.  The business suffered a loss and he was unable to make repayment.  On two occasions, the moneylender went to his home to demand repayment.  He was not at home on the first occasion.  On the second occasion, the moneylender and his followers assaulted him, as a result of which he was hospitalized.  They went to the hospital and made death threat to his wife.  Fearing for their personal safety, the applicant and his wife fled home and sneaked into mainland China where they worked in a factory.  Later on, the applicant sneaked into Hong Kong.  

4.  By a Notice of Decision dated 22 November 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]. 

5.  The Board heard the applicant’s appeal at an oral hearing on 26 June 2020, and by a decision given on 13 July 2020 dismissed the appeal.  In gist, the Board found the applicant’s claim did not satisfy the requirements for non-refoulement protection under any of the applicable grounds.  Notably, the Board considered the applicant’s problem was a private dispute with no evidence of state involvement, the harm inflicted by the moneylender and his followers did not attain the minimum level of severity, the risk of harm was not due to a Convention reason, and state protection as well as internal relocation alternatives were reasonably available which would reduce any risk of harm that the applicant might face.  

6.  The applicant filed a Form 86 and an affirmation on 5 August 2020 to seek leave to apply for judicial review against the decision of the Board.  He did not provide any grounds for seeking relief.

7.  The Judge heard the leave application at an oral hearing on 19 December 2023.  During the hearing, the applicant informed the Judge he had no complaint of error of law, irrationality or unfairness against the Board and its decision.  He further stated that his problem had been solved and it was safe for him to return home.  By a Form CALL-1 dated 23 February 2024, the Judge dismissed the application, finding that there was no ground to support the intended judicial review. 

8.  By a notice of appeal dated 28 February 2024, the applicant appealed the Judge’s decision to this court. 

9.  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 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. 

10.  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.

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

(1)  Importantly, the applicant has not identified any error in the Judge’s reasoning and decision. 

(2)  Further, 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 made by the applicant, which are completely contrary to what he told the Judge at the hearing.  

(3)  Moreover, the Board found that the applicant’s claim failed to meet the legal requirements under the applicable grounds.  The applicant has not advanced any ground to challenge the Board’s assessments and findings.  

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