NGUYEN THI THANH v. TORTURE CLAIMS APPEAL BOARD

CACV 214/2025, [2025] HKCA 792

On Appeal From [2025] HKCFI 1548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 214 OF 2025

(ON APPEAL FROM HCAL NO 306 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Michael Wong (“Judge”)  on 16 April 2025[1] dismissing the applicant’s leave application for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 22 January 2020.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 19 November 2019 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1974.  She claimed to have illegally entered Hong Kong from Mainland China on 1 September 2019 and surrendered to the Immigration Department on 12 September 2019.  On 19 September 2019, she submitted a written signification indicating her intention to lodge a non-refoulement claim in Hong Kong.  The applicant’s claim was made on the basis that if she returned to Vietnam, her creditor (Nguyen Van Nam)  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 [16] to [29] of the Board’s decision.

3.  By notice of decision dated 19 November 2019, 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 on 10 January 2020, during which the applicant gave evidence and answered questions from the Board.  It appears that the Board accepted the applicant’s factual case as stated.

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 loan dispute was of a purely private nature without any state involvement, there was no risk of harm that attained a minimum level of severity, reasonable state protection would be available as there was no acquiescence on the part of the police according to the applicant’s case, and internal relocation to a province or city other than her own hometown in Vietnam 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 22 January 2020, 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 4 March 2020, 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.  She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.

8.  The Judge considered the application on the basis of the documents and the submissions made by the applicant at the oral hearing held on 8 April 2025.  On 16 April 2025, the Judge issued his decision, dismissing her leave application.  The reasons were set out in [11] to [19] of the Form CALL-1 as follows:

“ 11. The applicant did not advance any grounds for her intended judicial review. The allegation that she would have nowhere to stay in Vietnam cannot amount to a ground for judicial review, as the Board did consider viability of internal relocation in the Board’s Decision. The Board concluded that there was no evidence to suggest that the creditor was in any way related to the authority so that he could have the resources to locate the applicant had she stayed in any city other than her own in Vietnam. This court finds nothing wrong with this conclusion.

12. In the absence of any proper grounds for the Leave Application, this court could only review the Board’s Decision by scrutinizing it for errors of law, procedural unfairness and irrationality.

13. In assessing the appeal by the applicant, the Board held an oral hearing on 10 January 2020 and carefully considered all the evidence and the applicable grounds under the USM.

14. The Board found that the matter between the applicant and her creditor was clearly a case of loan dispute, and the creditor had never done anything to harm the applicant. The evidence indicated to the Board that the creditor was not serious in carrying out the threat to kill at all, and that the threats were merely measures to pressurize the applicant to repay the loan.

15. After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant failed to prove that she would be subjected to torture, ill-treatment, risk of right to life, or risk of persecution. Hence, the Board concluded that the applicant was not entitled to non-refoulement protection under any of the applicable grounds.

16. The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

17. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

18. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

19.  In Po Fun Chan v Winnie Cheung (2007)  10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.”

Appeal to this Court

9.  On 22 April 2025, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that she would be beaten or even killed by creditors and gangsters if she returned, that the Director failed to appreciate or properly assess the viability of the applicant’s internal relocation within Vietnam, and that the Director failed to consider her human rights. 

10.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

11.  The applicant has lodged written submissions in which she recited the general legal principles related to high standard of fairness and Wednesbury unreasonableness without specific application to her own case.

Discussion

12.  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, 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.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the loan dispute was of a purely private nature without any state involvement, there was no risk of harm that attained a minimum level of severity, reasonable state protection would be available, and internal relocation to a province or city other than her own hometown in Vietnam 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.  As for the ground advanced relating to human rights, it consists of a mere general and bald assertion regarding the decision of the Director without any particulars.  It does not constitute a viable ground of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  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.

15.  The applicant’s appeal is accordingly dismissed.