RE DINH DINH THANH

CACV 556/2024 , [2025] HKCA 514

On appeal from [2024] HKCFI 3613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 556 OF 2024

(ON APPEAL FROM HCAL NO. 2313 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 Levy (“the Judge”)  given on 18 December 2024 ([2024] HKCFI 3613)  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 60.  In 1989 he entered Hong Kong illegally and was repatriated to Vietnam in 1995.  He later again entered Hong Kong illegally and was arrested by the police on 11 January 2014.  He subsequently raised a non-refoulement claim based on a fear of being harmed or killed by his creditor due to his inability to repay his debt.  His claim was set out in details in [6] of the Director’s decision.  In gist, the applicant claimed that in 2012 he obtained a loan from a moneylender in connection with his fish farm. He was unable to repay the loan.  On two occasions, the moneylender and his followers went to his home to demand repayment, during which they threatened to harm him and on the second occasion also assaulted him.  Fearing for his personal safety, the applicant fled home and went to mainland China from where he sneaked into Hong Kong.  

4.  By a Notice of Decision dated 4 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]. 

5.  The Board heard the applicant’s appeal at an oral hearing on 4 April 2019, and by a decision given on 1 August 2019 dismissed the appeal.  In gist, the Board rejected the applicant’s evidence as being incredible having regard to the material inconsistencies and the inherent implausibility.  The Board also found that, even on the applicant’s evidence, the claim did not satisfy the requirements for non-refoulement protection under any 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 by the moneylender and his followers did not attain the minimum level of severity, the risk of harm was not due to a Convention reason, and internal relocation alternatives were reasonably available which would reduce any risk of harm that the applicant might face.  

6.  The applicant filed a Form 86 and an affirmation on 12 August 2019 to seek leave to apply for judicial review against the decision of the Board.  He did not provide any grounds for seeking relief.

7.  The Judge listed the leave application for an oral hearing on 3 December 2024.  The applicant was absent at the hearing.  By a Form CALL-1 dated 18 December 2024, the Judge dismissed the application, finding that the intended judicial review has no realistic prospect of success for the reasons given at [11] to [14]:

“11. The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and deposed that he did not agree with the Board’s Decision. There were no evidence or identification of errors in support of the intended challenge.

12. The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. After examining the applicant’s evidence in great detail, the Board found that the applicant was not a truthful witness. The findings of the availability of state protection and internal location were based on the Board’s examination of the relevant COI. These are findings of fact, which the court in a judicial review will not interfere with.

13. In the Leave Application, the applicant has failed to identify any arguable error of law by the Board, any relevant matter that the Board had failed to consider or any other reason why the Board’s Decision was wrong. Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness.

14.  I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the applicant’s issue with commonsense and high standard of fairness: see TK v Jenkins & Anor [2013] 1 HKC 526.”

8.  By a notice of appeal dated 23 December 2024, the applicant appealed the Judge’s decision to this court. 

9.  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. 

10.  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.

11.  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.

12.  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 had not been 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 had rejected the applicant’s evidence as being incredible, and further found that, even if accepting the applicant’s evidence, the claim would still fail to meet the legal requirements under the applicable grounds.  Assessment of credibility and risks is a matter for the Board.  The applicant has not advanced any ground to challenge the Board’s assessments and findings as well as the legal analysis.  

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