RE TIEU VAN THUYET

CACV 72/2023 , [2025] HKCA 529

On appeal from [2023] HKCFI 557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 72 OF 2023

(ON APPEAL FROM HCAL NO. 1133 OF 2019)

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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 Lung (“the Judge”)  given on 2 March 2023 ([2023] HKCFI 557)  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 51.  He entered Hong Kong illegally and surrendered to the Immigration Department on 8 October 2015.  He subsequently raised a non-refoulement claim based on a fear of being harmed or killed by his creditor and his followers due to his inability to repay a debt.  His claim was set out in detail in [7] of the Director’s decision.  In gist, the applicant claimed that in 2013 he obtained a loan from a moneylender in connection with his farm.  After his stock was wiped out by a plague, he was unable to keep up with the repayment.  In June 2014, the moneylender and his followers went to the applicant’s home and assaulted him with bare hands.  He did not report the attack to the police. Thereafter the applicant went into hiding.  Eventually in September 2015, he sneaked into Hong Kong via mainland China.   

4.  By a Notice of Decision dated 17 May 2018, 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 dealt with the applicant’s appeal on paper.  By a decision given on 24 April 2019, it dismissed the appeal.  

6.  In gist, the Board considered that on the applicant’s case, it was a private dispute, the harm inflicted by the moneylender and his people did not attain the minimum level of severity, and there is no real risk of the moneylender inflicting serious harm on him.  The Board further found internal relocation alternatives were reasonably available, which would 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.

7.  The applicant filed a Form 86 and an affirmation on 29 April 2019 to seek leave to apply for judicial review against the decision of the Board.  Other than reiterating the factual basis of his claim in the supporting affirmation, the applicant did not provide any substantive grounds for seeking relief. 

8.  The Judge dealt with the leave application on paper.  By a Form CALL-1 dated 2 March 2023, the Judge dismissed the application.  In sum, the Judge pointed out that the applicant did not provide any grounds to challenge the findings made by the Director and the Board.  The Judge further held that there was no error of law, irrationality or procedural unfairness in the Board’s decision, and concluded that the intended judicial review had no realistic prospect of success. 

9.  By a notice of appeal dated 9 March 2023, the applicant appealed the Judge’s decision to this court. 

10.  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; (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. 

11.  The applicant also filed an affirmation in which he said 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.

12.  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.

13.  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.  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.  

(2)  Further, the Board found that the applicant’s claim failed to meet the legal requirements of the applicable grounds.  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. 

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