DOAN THI THUY HANG v. TORTURE CLAIMS APPEAL BOARD

CACV 199 /2025, [2026] HKCA 567

On appeal from [2025] HKCFI 1254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 199 OF 2025

(ON APPEAL FROM HCAL NO 91 OF 2020)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Background

1.  On 10 April 2025, Deputy High Court Judge Michael Wong 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 claim[1]. The applicant filed a Notice of Appeal against the said decision on 15 April 2025.

2.  The applicant is a national of Vietnam.  She last entered Hong Kong as a visitor on 5 December 2013 and subsequently overstayed.  She was arrested by the police on 2 March 2016.  She lodged her non-refoulement claim on 19 March 2016.  Her claim was made on the basis that, if refouled, she would be harmed of killed by her creditor and his people.

3.  By a Notice of Decision dated 27 February 2019, 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.  She lodged an appeal with the Board and attended the hearing before the Board on 29 November 2019.  The Board found that the alleged loan was fabricated as the relevant evidence was questionable and unreliable, and the applicant’s story is full of inconsistencies.  The Board considered that the applicant’s claim could be given no credence.  Besides, the Board also found that sufficient and reasonable state protection is available to the applicant in Vietnam.  Therefore, the Board concluded that the applicant has failed to demonstrate that she is entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and dismissed the appeal on 31 December 2019.

The judge’s decision

5.  The applicant filed a Form 86 and an affirmation on 9 January 2020 to seek leave to apply for judicial review against the decision of the Board.  She only stated that she did not agree with the Board’s decision, without putting forward any specific grounds for her intended challenge.

6.  The leave application was heard by Deputy High Court Judge Michael Wong on 11 March 2025.  The applicant submitted at the hearing that her problems in Vietnam have not been resolved and she needs to take care of her mother so she wants to stay in Hong Kong.  The judge held that her mere assertion that her problems have not been resolved is not a valid ground as the Board has already assessed the risks arising from the alleged problems.  He further held that her need to take care of her mother is irrelevant to her claim for non-refoulement protection.  In addition, the judge found there is no error of law, procedural unfairness or irrationality in the Board’s decision.  As he found that the intended judicial review has no realistic prospect of success, he dismissed the leave application on 10 April 2025.

Grounds of appeal

7.  The applicant stated the following grounds of appeal in the Notice of Appeal filed on 15 April 2025:

(1)  If she returns to Vietnam, her life would be seriously threatened or she 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)  It is completely unfeasible for her to change to live in another location as she would face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with the 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”, the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.

8.  The applicant submitted a written consent for this appeal to be disposed of on paper without an oral hearing.  She did not lodge any written submissions by the prescribed deadline as directed by the Registrar of Civil Appeals.

Legal principles

9.  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.

10.  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.  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.

11.  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

12.  The applicant’s grounds in this appeal are just bare assertions without sufficient particulars or evidence in support.  She also failed to identify any error in the judge’s decision.  The appeal is devoid of merit and is dismissed accordingly.