PHAM VAN TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 68 /2025, [2026] HKCA 365

On appeal from [2025] HKCFI 291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 68 OF 2025

(ON APPEAL FROM HCAL NO 307 OF 2020)

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J U D G M E N T

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

Background

1.  On 6 February 2025, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to seek leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 13 February 2025.

2.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 11 May 2015 and surrendered to the Immigration Department on 19 May 2015.  He lodged his non-refoulement claim on 19 May 2015 on the basis that, if refouled, he would be harmed or killed by his creditor.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 30 November 2016, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

4.  The applicant filed an appeal against the Director’s decision with the Board on 14 December 2016.  The Board considered that it is appropriate to deal with the appeal on paper without a hearing according to the principles established in ST v Betty Kwan and Others [2014] 4 HKLRD 277.  The Board held, among other things, that the applicant’s problem is a private dispute which does not involve any reasons related to persecution and there is no evidence to support the alleged risk of harm.  The Board further found that the applicant can relocate to other places in Vietnam to avoid the alleged risk.  Therefore, the Board dismissed the appeal on 28 November 2017.

The intended judicial review

5.  The applicant filed a Form 86 and an affirmation out of time on 4 March 2020 to seek leave to apply for judicial review against the decision of the Board.  He reiterated the problems he faced in Vietnam and put forward the following grounds of his intended challenge:

(1)  The Director’s assessment and the Board’s decision are based on a third party account;

(2)  Out of 102 pages of documents sent to him, 79 pages are in Chinese.  This is a deliberate attempt by the Immigration Department to undermine the applicant’s judicial review application. 

The judge’s decision

6.  DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing.  The judge found that the applicant failed to show why the assessment of his claim was wrong or prejudicial against his interest.  The judge further found that the Chinese documents would not affect his application and the applicant did not raise this issue with the Board so this ground is irrelevant.  Therefore, the judge was not satisfied that the applicant has a realistic prospect of success in the proposed judicial review and refused to grant extension of time for him to seek leave to apply for judicial review on 6 February 2025.

Grounds of appeal

7.  The applicant submitted a written consent for this appeal to be disposed of on paper without an oral hearing.  He did not state any specific ground for his appeal in the Notice of Appeal.

8.  In his written submissions, he explained that his delay in filing his application was because he did not receive the Board’s decision, he does not know Chinese and did not know how to submit his appeal.  He also reiterated the problems he faced in Vietnam and mentioned the treatment he has been receiving from a psychiatrist. 

Legal principles

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.

10.  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 scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  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.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

12.  The applicant failed to identify any error in the Board’s decision in his leave application, despite the long period of time he has taken after being informed of the Board’s decision.  In the present appeal, he also failed to identify any error in the judge’s decision and did not have any valid ground to challenge it.  Therefore, the appeal is devoid of merit and we dismiss it accordingly.