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

CACV 1243/2025, [2026] HKCA 311

On Appeal From [2025] HKCFI 6147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1243 OF 2025

(ON APPEAL FROM HCAL NO 71 OF 2020)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Fung J (“the Judge”) dated 22 December 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 9 December 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of the Immigration (“the Director”) dated 21 November 2017.

BACKGROUND

2.  The Applicant is a national of Vietnam.  She claimed that she entered Hong Kong illegally on 2 November 2014.  On 10  November  2014, she surrendered herself to the Immigration Department and lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor (Nguyen Thi Huong) and the subordinates of her creditor due to some outstanding loans.  Details of the Applicant’s claim have been summarised by the Judge at §2 of the CALL-1 Form.

3.  By a Notice of Decision dated 21 November 2017 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.  The Applicant appealed the Director’s Decision to the Board.  On 9 December 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §5 of the CALL-1 Form.  Essentially, the Board considered that state protection and reasonable internal relocation options would be available to the Applicant in Vietnam.

THE JUDGE’S DECISION

5.  On 8 January 2020, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86.  In her supporting affirmation of the same date, the Applicant merely repeated the factual basis of her claim.

6.  On 22 December 2025, the Judge gave his decision refusing to grant leave to apply for judicial review.  The Judge considered that the Applicant’s intended application was not reasonably arguable, finding in particular that the Board’s conclusion as regards the viability of internal relocation was not unreasonable.

THIS APPEAL

7.  In her Notice of Appeal filed on 30 December 2025, the Applicant repeats her claimed fear upon returning to her home country. She says that her creditor and his followers disregard the law and are willing to kill people to satisfy their anger and ferocity.  She disagrees with the Director’s assessment that she could move to another location in Vietnam to avoid her creditor for various reasons, and alleges that the Immigration Department did not consider her human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

8.  In her supporting affirmation of the same date, the Applicant requests the Court of Appeal to exercise its discretion to allow her appeal.

9.  In her written submissions lodged on 3 February 2026, the Applicant states that her younger brother was hospitalised because of a recent assault by her creditor.  She raises five grounds of appeal, which may be summarised as follows:

(1)     Ground 1 – the Board erred in underestimating the risk of harm that she would face upon refoulement by considering that her creditor did not inflict any grievous bodily harm on her and had no intention of killing her other than to demand for repayment of her loans.

(2)     Ground 2 – the Board erred in holding that there was no state involvement in her dispute with her creditor by failing to seek clarification or invite further submissions from her.

(3)     Ground 3 – the Board erred in holding that state protection would be available to her in Vietnam by relying on news that was not credible and without holding a hearing to hear from her orally.

(4)     Ground 4 – the Board was irrational in holding that there lacked any or any sufficient evidence to show that the injuries suffered by her did not attain the required minimum level of severity, while accepting that she had been “pummeled, bludgeoned and threatened with a death threat by her creditors” which the Board said was “a horrid and terrible experience”.

(5)     Ground 5 – the Board failed to consider the undue hardship that she would face if she was to relocate to another city in Vietnam.

10.  At the hearing of the appeal, the Applicant stated that she wished to stay in Hong Kong, and did not want to be harmed upon her return to Vietnam.

DISCUSSION

11.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

12.  Further, the assessment of evidence, country of origin information (“COI”), 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: Re Kartini [2019] HKCA 1022, at §13.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.  The matters raised in the Applicant’s Notice of Appeal, supporting affirmation and written submissions are either repetitions of her claimed fear upon refoulement which has been rejected by the Board and/or the Judge, or new points which were not raised in her leave application below.  She is not entitled to raise these new points for the first time in the Court of Appeal.  In any event, they are all directed at the decisions of the Director and/or the Board, but not the Judge’s decision, and cannot give rise to any valid ground of appeal.

14.  We would add that: (i) in respect of Ground 3, the Board did, as a matter of fact, held an oral hearing of the appeal at which the Applicant made submissions/gave evidence with the assistance of a Vietnamese interpreter, and (ii) in respect of Ground 4, the Board did not make the alleged findings.

15.  Finally, the Applicant’s allegation that her brother was the victim of a recent assault is a bare allegation which is not substantiated by any evidence.  Even if the allegation is true, it is not a valid ground to challenge the Board’s findings that the risk of harm to her could be avoided because of the availability of internal relocation options.

16.  The Applicant has failed to raise any viable ground of appeal against the Order. 

17.  The Applicant’s appeal has no merit, and is dismissed.

18.  This judgment is written in English although the decisions of the Director, the Board and the Judge were written in Chinese, because the Applicant’s Notice of Appeal, supporting affirmation and written submissions are all written in English.  If required, the Applicant may make an appointment with the clerk to this Court for an oral interpretation of this judgment in the Applicant’s preferred language at a mutually convenient time in the Court’s premises.

[1] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.