Nguyen Duc Thinh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 263 /2024, [2025] HKCA 559

On appeal from [2024] HKCFI 1709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 263 OF 2024

(ON APPEAL FROM HCAL NO 1689 OF 2019)

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J U D G M E N T

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

1.On 26 June 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1]. The applicant filed a Notice of Appeal against the said decision on 2 July 2024.

2.The applicant is a national of Vietnam.  He entered Hong Kong illegally on 14 April 2011 and was arrested by the police on 19 May 2011.  He lodged a non-refoulement claim on 27 September 2011.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Vietnamese government because he was falsely accused of being a spy.   

The decisions of the Director and the Board

3.By a Notice of Decision dated 14 February 2017, 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.The applicant filed an appeal against the Director’s decision with the Board and attended the hearing with his legal representative before the Board on 25 April 2018 and 4 April 2019.  In respect of the applicant’s submissions that the Director or the Board should obtain evidence in support of his case for him, the Board considered there is no reason why the applicant cannot obtain the relevant documents by himself as he has been legally represented.  The Board also found there is no reason for the Director to obtain assurance from the Vietnamese authorities that the applicant would have a new trial or that death penalty would not be imposed upon him as the Board did not accept that the applicant has ever been accused of espionage or other crimes by the Vietnamese authorities.

5.Although the Board accepted that the applicant might have very limited understanding of oral Chinese, it did not accept that his language abilities had progressed to the stage where he was engaged as a part-time interpreter and translator having learned Chinese from his friends. The Board found that the applicant had fabricated his claim as he had no formal qualifications and was unable to write Chinese while there existed a sizeable population in Ho Chi Minh City that possessed these abilities.  Thus, the Board did not accept that the applicant had ever worked as a Mandarin interpreter or translator, nor that he was suspected by the Vietnamese authorities to have been passing state secrets to the Chinese government as a result of such work. The Board also found no evidence to suggest that the applicant was being used as a scapegoat due to his interpretation and translation work.  Furthermore, the Board did not accept that the applicant’s parents had been detained or tortured by the Vietnamese authorities on any occasion as the Board found the applicant’s account in this respect unreliable.

6.In addition, having considered the parties’ submissions, the relevant provisions and decided cases, the Board did not accept that Article 14 of the Hong Kong Bill of Rights creates any separate rights which could found a non-refoulement protection claim.

7.Therefore, the Board decided that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and dismissed the appeal on 11 June 2019.

The intended judicial review

8.The applicant filed a Form 86 and an affirmation on 19 June 2019 to seek leave to apply for judicial review against the decision of the Board.  He stated the following grounds for his intended challenge in his supporting affirmation:

(1)  The Board had selectively accepted the evidence without stating what standard it was adopting.

(2)  The Board failed to seriously consider the applicant’s documentary evidence.

(3)  The Board did not seriously consider BOR 2 and BOR 3 risks and their applicability to his case.

(4)  The Board’s assessment was prejudicial, subjective and without legal basis, particularly in relation to torture and persecution, which are prevalent in Vietnam. 

The judge’s decision

9.The applicant attended the hearing before DHCJ K W Lung on 22 May 2024.  The judge found that the Board has duly considered the applicant’s evidence and was entitled to accept the evidence it believed and reject the evidence it did not believe.  The judge also found the applicant’s assertion that the Board did not seriously consider BOR 2 and BOR 3 risks is not supported by any evidence.  The judge further found that the Board’s conclusion is logical and not prejudicial, subjective nor without legal basis.  The judge was not satisfied that the applicant has any realistic prospect of success in his proposed judicial review and dismissed the leave application on 26 June 2024.

Grounds of appeal

10.The applicant’s grounds of appeal stated in the Notice of Appeal and supporting affirmation may be summarised as follows:

(1)  If he returns to Vietnam, his life will be seriously threatened or he will probably be harmed or killed by the Vietnamese government;

(2)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;

(3)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;

(4)  The Director and the Board did not see the grounds to reserve their decisions.

11.The applicant has submitted a written consent to have the appeal disposed of on paper without an oral hearing.  Despite the directions given by the Registrar of Civil Appeals requiring the applicant to lodge written submissions on or before 16 July 2024, he did not lodge any written submissions.

Legal principles

12.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.

13.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.  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.

14.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

15.The applicant’s grounds of appeal are just bare assertions.  He has not adduced any reliable evidence to refute the Board’s findings.  He also failed to identify any error in the judge’s decision.

16.For the above reasons, the applicant’s grounds of appeal are devoid of merit.  The appeal is dismissed accordingly.

[1]  [2024] HKCFI 1709

[2]  As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

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

[4]  This refers to 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).

[5]  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 and its 1967 Protocol.