Nguyen Minh Thao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 227 /2025, [2025] HKCA 972

On appeal from [2025] HKCFI 1462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 227 OF 2025

(ON APPEAL FROM HCAL NO 13 OF 2024)

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BETWEEN

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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):

Background

1.On 10 April 2025, Deputy High Court Judge To 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 decision on 24 April 2025.

2.The applicant is a national of Vietnam.  She entered Hong Kong illegally in July 2022 and was arrested by the police on 16 September 2022.  She lodged her non-refoulement claim on 13 October 2022 on the basis that she would be harmed or killed by her five creditors if she is refouled.

3.By a Notice of Decision dated 20 December 2022, 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 19 July 2023.  The Board was not satisfied that the creditors and their fellows intended to kill the applicant as she only suffered minor injuries during the incidents.  The Board also found that the alleged ill-treatment had not attained the requisite minimum level of severity.  There is also no indication that the creditors and their fellows are public officials or acting in any official capacity.  The Board further found it would not be unduly harsh for the applicant to relocate and reasonable state protection would be available to her in Vietnam.  The Board concluded the applicant’s case failed on all applicable grounds and affirmed the decision of the Director on 15 December 2023.

The judge’s decision

5.The applicant filed a Form 86 and an affirmation on 2 January 2024 to seek leave to apply for judicial review against the decision of the Board.  She reiterated the problems she faced in Vietnam without putting forward any specific grounds for her intended challenge against the Board’s decision. 

6.The leave application was heard before Deputy High Court Judge To on 19 March 2025.  The judge found no error of law or procedural unfairness in the Board’s decision.  He also held that the Board’s decision satisfied the enhanced Wednesbury test.  As there is no realistic prospect of success in the proposed judicial review, the leave application was dismissed on 10 April 2025.

Grounds of appeal

7.The applicant stated the following grounds of appeal in the Notice of Appeal filed on 24 April 2025:

(1)  If the applicant returns to Vietnam, her life would be seriously threatened because the gangsters in Vietnam are different from those in Hong Kong.  Most of them are cruel and violent.  They disregard the law and are willing to kill people.

(2)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there would be many difficulties and obstacles.  The applicant is not an active person, and this may disadvantage her in the labour market.  The nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus make it possible for the creditors and gangsters to find out the applicant’s new residence.

(3)  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 contentions in her written submissions may be summarised as follows:

(1)  The adjudicator misplaced her reliance on irrelevant matter that the creditors only wanted repayment, without paying due regard to the relevant matter that the applicant did suffer grievous bodily harm and mental suffering at the hands of the creditors;

(2)  The adjudicator failed to apply high standards of fairness by failing to invite the applicant to make further representations before finding that the creditors had nothing to do with the state;

(3)  The adjudicator relied on e-newspaper to conclude that the applicant could enjoy state protection upon refoulement, without independently evaluating the credibility and veracity of the country of origin information.  Paper disposal is also unsatisfactory as the applicant should be allowed to state her position orally;

(4)  No reasonable decision-maker could have come to the same conclusion regarding the level of severity suffered by the applicant while acknowledging that the applicant had been pummelled, bludgeoned and threatened with death threat by her creditors;

(5)  The adjudicator concluded that the applicant should have no problem in internal relocation in Vietnam without taking into account any undue hardship the applicant may face and any particular transferable skills that would enable her to find a job in another city.  It is also unsure if the applicant suffers any pre-existing injury that may hinder her employability.

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.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

11.In this appeal, the applicant reiterated the problems she faced in Vietnam and stated her complaints against the Director and the Board which are not supported by any reliable evidence.  In particular, she did not adduce any evidence before the judge that can refute the findings of the Director and the Board.  Her allegation concerning paper disposal by the Board is wholly without basis as she had in fact attended the hearing before the Board with the assistance of an interpreter and had the opportunity to make oral submissions.

12.Moreover, she does not have any viable ground to challenge the judge’s decision.  She failed to establish any errors of law of the judge or to demonstrate he has failed to take into account relevant matters or was otherwise plainly wrong.

13.For the above reasons, the appeal is devoid of merit and is dismissed accordingly.

The Applicant (Appellant), acting in person