NGUYEN THI TO UYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 302/2024, [2025] HKCA 924

On appeal from [2024] HKCFI 1899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 302 OF 2024

(ON APPEAL FROM HCAL NO 1637 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 19 July 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 25 July 2024.

2.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 26 October 2015 and surrendered to the Immigration Department on 24 November 2015.  She lodged a non-refoulement claim on 16 February 2016.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor because she is unable to repay the debt. 

The decisions of the Director and the Board

3.  By a Notice of Decision dated 28 June 2017, 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 Director observed that the applicant was assaulted just once and suffered minor injuries, hence the Director assessed that the asserted ill-treatment did not attain the requisite minimum level of severity.  Besides, despite the creditor’s threats against the applicant’s family, her family members still remain safe so the Director held that the risk of harm is not as substantial and imminent as she imagined.  The Director further found that the applicant’s problem arose from a private monetary dispute without any involvement of the Vietnamese authorities and there is insufficient evidence to show that the feared risk of harm was caused by any person who acted in an official capacity.  The Director also held there is insufficient evidence to show that the state would refuse to provide protection to the applicant in her home country and internal relocation options are available to the applicant which further lower or negate any perceived risk.  

5.  The applicant filed an appeal against the Director’s decision with the Board and attended the hearing before the Board on 4 April 2019.  The Board found that the applicant’s account was untruthful and not supported by sufficient evidence.  It was not accepted that the applicant had been ill-treated as alleged.  The Board also found that the injuries suffered by the applicant, if any, were not serious and her problem is private in nature not caused by any Convention reasons.  The Board further held that reasonable state protection and internal relocation options would be available to the applicant in her home country.  Therefore, the Board decided that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and dismissed her appeal on 31 May 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 14 June 2019 to seek leave to apply for judicial review against the decision of the Board.  She reiterated the problems she faced in her home country in her supporting affirmation, without putting forward specific grounds for her intended challenge against the Board’s decision.

The judge’s decision

7.  DHCJ K W Lung dealt with the leave application on paper as the applicant did not request an oral hearing.  The judge found that the applicant has not raised any valid reason to challenge the Board’s findings of fact.  The judge was not satisfied that the applicant has any realistic prospect of success in her proposed judicial review.  Therefore, the judge dismissed the leave application on 19 July 2024.

Grounds of appeal

8.  The applicant’s grounds of appeal stated in the Notice of Appeal and supporting affirmation may be summarized as follows:

(1)  If she returns to Vietnam, her life would be seriously threatened or would probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong. They disregard the law and are willing to kill people;

(2)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant would face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(4)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;

(5)  The Director and the Board did not see the grounds to reserve their decisions[6].

9.  The applicant has submitted a written consent to have the appeal disposed of on paper without an oral hearing.  Despite the directions given by the Registrar of Civil Appeals requiring the applicant to lodge written submissions on or before 8 August 2024, she did not lodge any written submissions.

Legal principles

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.

11.  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.  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.

12.  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

13.  The applicant’s grounds of appeal are just bare assertions without any basis.  She did not adduce any evidence to refute the Board’s findings.  She also failed to identify any error in the judge’s decision.

14.  For the above reasons, the applicant’s grounds of appeal are devoid of merit.  The appeal is dismissed accordingly.