RE HOANG MANH HIEU

CACV 413/2023 , [2025] HKCA 511

On appeal from [2023] HKCFI 3101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 413 OF 2023

(ON APPEAL FROM HCAL NO. 1543 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 To (“the Judge”)  given on 30 November 2023 ([2023] HKCFI 3101)  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 39.  He entered Hong Kong illegally and surrendered to the Immigration Department on 14 May 2015.  He subsequently raised a non-refoulement claim based on a fear of being harmed or killed by his creditor due to an unpaid debt.  His claim was set out in details in [7] of the Director’s decision and succinctly summarized by the Judge in [6] to [13] of the Form CALL-1. 

4.  In gist, the applicant claimed that in about 2011 and 2012 he obtained a loan from a moneylender to start a business.  The business suffered a loss and he was unable to repay the loan.  On three occasions, the moneylender brought a group of people to his work shop to demand repayment, during which they threatened to harm him and on two of those occasions assaulted him.  Fearing for his personal safety, the applicant went into hiding and eventually sneaked into Hong Kong via mainland China.  

5.  By a Notice of Decision dated 25 September 2017, 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]. 

6.  The Board dealt with the applicant’s appeal on the papers, and by a decision given on 3 June 2019 dismissed the appeal.  In gist, the Board accepted the applicant’s evidence, but found it did not satisfy the requirements for non-refoulement protection under all 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 on the applicant did not attain the minimum level of severity, there was no real risk of the moneylender inflicting serious harm on him, and internal relocation alternatives were reasonably available which would reduce any risk of harm that the applicant might face.  

7.  The applicant filed a Form 86 and an affirmation on 5 June 2019 to seek leave to apply for judicial review against the decision of the Board.  Other than outlining the facts of his claim, he had not provided any substantial grounds for seeking relief.

8.  The Judge dealt with the leave application on the papers.  By a Form CALL-1 dated 30 November 2023, the Judge dismissed the application, finding that the Board did not commit any error of law, there was no irrationality or procedural unfairness in its decision, and the intended judicial review had no realistic prospect of success. 

9.  By a notice of appeal dated 14 December 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 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. 

11.  The applicant also filed an affirmation which stated that 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. 

(2)  Further, the grounds in the notice of appeal were not 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.  

(3)  Moreover, the Board found that the applicant did not face any real or substantial risk of harm in his home country and his claim failed to meet the legal requirements under the applicable grounds.  As the Judge rightly pointed out, assessment of risks is a matter for the Board.  The applicant has not advanced any ground to challenge the Board’s assessments and findings.  

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