Re v. Dao Hanh

CACV 137/2025, [2025] HKCA 592

On Appeal From [2025] HKCFI 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 137 OF 2025

(ON APPEAL FROM HCAL NO 2493 OF 2019)

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J U D G M E N T

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

1.This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 4 March 2025 ([2025] HKCFI 540)(“the Leave Decision”), refusing her application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 23 August 2019 (“the Board’s Decision”), whereby the Board dismissed her appeal against the decision of the Director of Immigration (“the Director”) dated 12 May 2017 (“the Director’s Decision”) refusing her non-refoulement claim.

2.On 18 March 2025, the applicant indicated her consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.The applicant is a national of Vietnam.  She entered Hong Kong illegally on 30 November 2015.  She surrendered to the Immigration Department on 1 December 2015.  On the same day, she raised her non‑refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor because she was unable to repay her loan.  Details of the applicant’s claim were summarised by the Judge at [4] ‑ [5] of the Leave Decision.

4.By the Director’s Decision, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.The applicant appealed against the Director’s Decision to the Board 23 May 2017.  The applicant attended the oral hearing before the Board on 19 February 2019.  By the Board’s Decision, the Board dismissed her appeal and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [8] ‑ [10] of the Leave Decision.  In essence, the Board, having considered her evidence, found that the applicant was dishonest and unreliable and that she was not a genuine claimant.  The Board rejected her evidence and was also not convinced that after over three years her enemies were still chasing the applicant all over Vietnam and still wanted to harm her.  The Board thus rejected her non‑refoulement claim on all applicable grounds and dismissed her appeal.

THE JUDGE’S DECISION

6.On 28 August 2019, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review against the Board’s Decision.  No ground of challenge was advanced in her Form 86 or supporting affirmation.

7.On 20 January 2025, the applicant failed to attend the oral hearing before the Judge.  The Judge thus considered her application on paper.

8.By the Leave Decision, the Judge refused her application for leave to apply for judicial review.  His reasons were set out at [13] ‑ [19] of the Leave Decision:

“13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI 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.’

16.  In my view, the Board was entitled to come to its views above.

17.  The applicant has raised no valid ground to challenge the Board’s Decision.

18.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

THIS APPEAL

9.In her Notice of Appeal filed on 18 March 2025, the applicant mainly complained that, if refouled, her life would be seriously threatened by her creditor and local gangsters as it might be possible for them to locate her.  She also claimed that internal relocation would be completely unfeasible as she was not an active person and there would be no guarantee that she would be able to adapt to the new place.  She also complained that the Immigration Department failed to consider her human rights under various legislations but failed to particularise her complaint.

10.In her supporting affirmation filed on 18 March 2025, the applicant claimed that she understood that there was “a good ground of appeal that was not necessarily considered at the leave stage” and that the Director and the Board did not “see the grounds to reserve their decisions”.  However, the applicant failed to specify what the said ground was.

11.Contrary to the directions of the Registrar of Civil Appeals dated 18 March 2025, the applicant failed to lodge any written submissions.

DISCUSSION

12.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

13.In our view, the applicant’s appeal has no substance.  At the outset, her assertions are all general, vague and bare which are not proper grounds of appeal.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, she failed to identify any error with specific particulars against the Leave Decision.  Accordingly, her assertions are not valid grounds of appeal.

14.In any event, for completeness, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the Leave Decision.  We agree with the Judge’s observations and see no basis to disturb the Leave Decision.

15.For the above reasons, the applicant’s appeal against the Leave Decision has no merit and is hereby dismissed.