VU NGOC LAM AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 689/2025, [2026] HKCA 612

On Appeal from [2025] HKCFI 3786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 689 OF 2025

(ON APPEAL FROM HCAL NO 3378 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon H. Au-Yeung J (giving the Judgment of the Court):

1.  This is the applicants’ appeal against the order (“the Order”)  of Deputy High Court Judge Michael Wong (“the Judge”)  dated 26 August 2025. By virtue of the Order, the Judge dismissed the 1^st applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  dated 31 October 2019 (“the October 2019 Decision”)  and granted leave to the 2^nd applicant to apply for judicial review in respect of the Board’s decision dated 7 January 2019 (“the January 2019 Decision”).

2.  The applicants are nationals of Vietnam.  The 2^nd applicant was born in 2003 and is the daughter of the 1^st applicant.  Their non-refoulement claim based on BOR 2 risk[1] was dismissed by the Director of Immigration (“the Director”)  on 1 December 2016 (“Director’s Decision”).  By the January 2019 Decision, the Board allowed the 2^nd applicant to withdraw her appeal against the Director’s Decision.  By the October 2019 Decision, the Board dismissed the 1^st applicant’s appeal against the Director’s Decision.

3.  The basis of the 1^st applicant’s claim had been set out in detail in the October 2019 Decision, which may be viewed online via the hyperlink contained in [1] of the CALL-1 Form.  The 2^nd applicant claimed that she would face the same risks as the 1^st applicant upon her return to Vietnam.  In gist, the applicants claim that they will be killed or harmed by the creditors of the 1^st applicant upon their return.

4.  In [30] to [58] of the CALL-1 Form, the Judge gave detailed reasons for making the Order.

5.  By a Notice of Appeal filed on 4 September 2025, the applicants appeal against the Judge’s decision.  In summary, they contend that:

(1)  They will be killed or harmed by the 1^st applicant’s creditors upon their return;

(2)  Relocation is completely infeasible; and

(3)  The Director did not consider their human rights.

6.  This appeal was scheduled to be heard on 26 March 2026.  As the applicants have failed to lodge any skeleton argument in support of their appeal in accordance with the directions given by the Registrar of Civil Appeals on 11 February 2026, they are deemed to have waived their right to have an oral hearing of the appeal and elected to have the appeal disposed of on paper.  Having considered the documents before us, we consider that it is appropriate to deal with their appeal on paper without an oral hearing.

7.  The general approach of this Court in dealing with appeals in non-refoulement cases has been set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court would 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.  This Court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

8.  Further, the assessment of evidence, Country of Origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

9.  The 2^nd applicant was successful in obtaining leave to apply for judicial review by virtue of the Order.  Hence, her appeal is totally misconceived and should be dismissed.

10.  In relation to the appeal brought by the 1^st applicant, the grounds of appeal are not related to any error by the Judge.  The 1^st applicant has therefore failed to advance any viable ground of appeal.

11.  In the premises, this appeal is hereby dismissed with no order as to costs.