NGUYEN THI VIET HA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 165/2025, [2025] HKCA 880

On Appeal from [2025] HKCFI 908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 165 OF 2025

(ON APPEAL FROM HCAL NO 2618 OF 2024)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  on 20 March 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 8 October 2024.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 7 June 2024 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1973.  She claimed to have entered Hong Kong illegally from Mainland China on 8 February 2024 and was arrested by the police on 14 February 2024.  The applicant submitted a written signification indicating her intention to lodge a non-refoulement claim in Hong Kong on 19 February 2024 and her non-refoulement claim form was submitted on 3 April 2024.  The applicant’s claim was made on the basis that if she returned to Vietnam, her creditor would harm or kill her due to her inability to repay a loan.  The factual background of the applicant’s claim was set out at [10] to [37] of the Board’s decision.

3.  By notice of decision dated 7 June 2024, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held remotely on 26 September 2024 via video link from Lo Wu Correctional Institution, during which the applicant gave evidence and answered questions from the Board.  The applicant elected not to give evidence in the appeal, but she was willing to answer questions from the Board.  On the totality of the evidence, the Board found the applicant’s claim not to be credible, because it found her evidence relating to the facts on which her claim was based to be inconsistent and questionable.  The Board rejected the applicant’s evidence, because it was not persuaded that she had borrowed money and that she faced a threat of harm from a moneylender in Vietnam.  

5.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to Vietnam. It found there was in fact no real risk of harm if the applicant returned to Vietnam, because the alleged moneylender was acting in a personal and private capacity without any involvement of the state, the claimed risk did not amount to the minimum level of severity, reasonable state protection would be readily available, and internal relocation to big cities, such as Ho Chi Minh City, Danang and Nha Trang, would be a viable option for the applicant.  

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Vietnam.  By its written decision dated 8 October 2024, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 24 December 2024, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. Her grounds for judicial review were that the Director and the Board reached their decisions wrongly, that the Director failed to give weight to the presence of state acquiescence, that the Board placed too much weight on country of origin information and failed to take into account the applicant’s personal background and experience, that the Board was unfair in its assessment of whether to accept the explanations of the applicant or not and unreasonably required her to respond to questions, and that the Board dismissed the applicant’s appeal based on findings which ought to have led it to allow the appeal.   

8.  The Judge considered the application on the basis of the documents and the submissions of the applicant at the scheduled hearing on 13 February 2025.  On 20 March 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [11] to [15] of the Form CALL-1 as follows:

“ 11. These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case when on the factual basis of even her own case that it was just a private monetary dispute between her and her creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

   15.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her leave application.”

Appeal to this Court

9.  On 1 April 2025, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that the Director failed to give sufficient weight to state acquiescence, that the Board failed to make sufficient enquiry, and that the applicant was not given an opportunity to plead her case properly.   

10.  As the applicant did not lodge any skeleton argument, the scheduled hearing of her appeal was vacated pursuant to the directions of the Court.  We shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

11.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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 particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  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.

12.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the alleged moneylender was acting in a personal and private capacity without any involvement of the state, the claimed risk did not amount to the minimum level of severity, reasonable state protection would be readily available, and internal relocation to big cities, such as Ho Chi Minh City, Danang and Nha Trang, would be a viable option for the applicant. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

13.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

14.  The applicant’s appeal is accordingly dismissed.