Bui Ngoc v. V. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 256/2025, [2025] HKCA 1004

On Appeal From [2025] HKCFI 1589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 256 OF 2025

(ON APPEAL FROM HCAL NO 3787 OF 2019)

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JUDGMENT

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Hon H. Au-Yeung J (giving the Judgment of the Court):

1.This is the Applicant’s appeal against the order of Deputy High Court Judge (Non-refoulement Claims) Philips Wong (“the Judge”) dated 22 April 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 23 August 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 August 2017.

BACKGROUND

2.The Applicant is a national of Vietnam.  He claimed that he entered Hong Kong illegally on 29 November 2016.  On 30 November 2016, he surrendered himself to the Immigration Department.  By way of written signification dated 16 December 2016[1], he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by Thien, his creditor, or Thien’s subordinates for being unable to repay his gambling debt.  He claimed that in 2010, he was beaten up by Thien’s 5 subordinates and sustained injury as a result of their assault[2].

3.By a Notice of Decision dated 30 August 2017 (“the Director’s Decision”), the Director rejected the Applicant’s non-refoulement claim with reference to all applicable risks: risk of torture[3], BOR 2 risk[4], BOR 3 risk[5], and persecution risk[6].

4.The Applicant appealed against the Director’s Decision to the Board.  On 23 August 2019, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decision.  In its decision, the Board found that his claim was not substantiated by any documentary proof and he was not a credible witness.  The Board did not accept his claim to be truthful (§§33-41). The Board found that there were no substantial grounds for believing that he would face any foreseeable or real risk of harm upon refoulement (§44, 49, 50, 63 and 67).  The Board also found that, in any event, state protection was available to him and reasonable internal relocation was a viable option for him in his home country (§§51-59)

THE JUDGE’S DECISION

5.On 19 December 2019, The Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision, naming the “Immigration Department” as the proposed respondent and the Board as one of the putative interested parties.  The Judge correctly granted leave to amend the Form 86 so that the Board became the Putative Respondent and the Director became the Putative Interested Party.  By then, he was over 3 weeks late in making his leave application.  No ground for seeking relief was given in the Form 86, or in his supporting affirmation filed on the same date.  Nor was there any explanation given by the Applicant for the delay.

6.On 22 April 2025, the Judge refused to extend time for the Applicant to apply for leave to apply for judicial review and dismissed the leave application, for the following reasons set out in the CALL-1 Form:

“[6] No application for extension of time to file the Leave Application was made by the Applicant. There was no explanation for the delay in either the Form or the supporting Affirmation. At the hearing on 17 March 2025, when being asked about the delay, the Applicant explained that he was late in filing the Leave Application because he was detained in prison at the time and so he could not process the application.

[7] In considering whether to extend the time for applying for leave for judicial review, the Court shall have regard to, inter alia, the following:- (a) the length of the delay; (b) the explanation of the delay; (c) the merits of the substantive application; (d) the prejudice; and (e) the question of general public importance: Re Thomas Lai [2014] 6 HKC 1, at §§43-45; AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, at §27.

[8] In the present case, there was a delay of about 3 weeks. The fact that the Applicant was detained at the time is not a valid reason for the delay. I note from the Certificate of Imprisonment issued by the Correctional Services Department dated 5 December 2019 that the Applicant was detained from 29 March 2019 to (at least) 26 January 2020. The Applicant was able to file the Form on 19 December 2019 (when he was still detained). There is no reason why he could not do so within the time limit. Accordingly, I do not consider that there is valid explanation for the delay.

[9] As the merits of the intended judicial review is a significant factor to be considered in determining whether the Court should extend the time to apply for leave for judicial review, I shall proceed to consider the merits of the Leave Application.

…

[11] In the Form and in the supporting Affirmation, the Applicant did not provide any grounds in support of the Leave Application. He just stated in the supporting Affirmation that he objected to the Board’s Decision and the decision of the Director. At the hearing on 17 March 2025, when asked whether he had anything to say in support of the Leave Application, the Applicant simply said he wished to be allowed to stay in Hong Kong to avoid the ‘debt problem’ in Vietnam.

[12] I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. The Board was entitled to have serious doubt on the credibility of the Applicant based on its analysis of the evidence (see §§33 to 41 of the Board’s Decision). The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.

[13] Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).  Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.”

THIS APPEAL

7.In his Notice of Appeal filed on 2 May 2025, the Applicant repeats his claim that his life will be seriously threatened, and he will probably die if he returns to Vietnam, because most creditors and gangsters in Vietnam are cruel and violent, and they disregard the law and are willing to kill people to satisfy their anger and ferocity.  He disagrees with the Director’s assessment that he could move to another location in Vietnam to avoid his creditor for various reasons, and alleges that the Immigration Department did not consider his human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

8.In his affirmation of the same date, the Applicant states that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, but he fails to identify what that ground is.  He also states that he has been informed that the Director and the Board “did not see the grounds to reverse their decisions”, without giving any further explanation or particulars.

9.In his written submissions lodged on 8 October 2025, the Applicant raises the following points to support or supplement his grounds of appeal:

(1)  The Adjudicator of the Board erred in holding that he would not face any real risk of harm upon refoulement by failing to consider the serious injury inflicted on him by his creditor in the assault incident.

(2)  The Adjudicator failed to apply the high standards of fairness in its adjudication by concluding that there was no state involvement in his case, and failed to invite oral submissions or further representations from him.

(3)  The Adjudicator failed to properly evaluate the credibility and veracity of the Country of Origin Information (“COI”) in concluding that state protection would be available to him in his home country.

(4)  The Adjudicator erred in holding that the Applicant failed to provide sufficient evidence to prove that the ill-treatment he received had attained the required minimum level of severity, while accepting that he had been “pummelled, bludgeoned and threatened with a death threat” by his creditor.  

(5)  The Adjudicator failed to consider the hardship that he would face if he was to return to his home country.

10.The Applicant did not appear at the hearing of the appeal, despite the fact that he had been given notice of the hearing.

DISCUSSION

11.Under Order 53, rule 4 of the Rules of the High Court, Cap 4A, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

12.There was a delay of over 3 weeks by the Applicant in seeking leave to apply for judicial review in the present case. We agree with the Judge that the Applicant’s detention by the Immigration Department between March 2019 and January 2020 was not a reasonable explanation for the substantial delay.  In any event, this Court will go on to consider the merits of the appeal.

13.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases has been 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 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 were a fresh application for judicial review (see Nupur Mst, at §14(6)).

14.Further, the assessment of evidence, 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.

15.The matters raised in the Applicant’s Notice of Appeal, supporting affirmation, and written submissions are directed at the decisions of the Director and the Board, and are mostly general assertions without particulars.  They do not relate to the Judge’s reasons for refusing to grant him leave to apply for judicial review and do not constitute any valid ground of appeal against the Judge’s decision.  Further, these matters raised by the Applicant are all new points which were not raised by him before the Judge, and some of the matters raised in his written submissions were not even covered by his Notice of Appeal.  We do not consider that the Applicant should be permitted to raise these new points, which essentially concern the Board’s assessment of evidence, COI, risk of harm, state protection and viability of internal relocation, for the first time in the Court of Appeal.  In any event, they are devoid of merits.

16.For the sake of completeness, we shall focus on the Applicant’s complaints raised in his written submissions, and deal with them briefly.

17.In respect of points (1) and (4), which may be considered jointly, it was the Applicant’s account of event that he was only on one occasion assaulted by 5 subordinates sent by his creditor with wooden sticks and iron rods to demand him to repay his outstanding debt, and that he had received 12 stitches on his forehead as a result and was treated with painkiller and herbal oil (see §§9, 10 and 22 of the Board’s Decision).  It was not his testimony, nor was the Board’s finding, that he had been “pummelled, bludgeoned and threatened with a death threat by [his creditor]” as now alleged by him.  It was the Applicant’s own testimony that his creditor or the subordinates of his creditor never hurt the Applicant’s family members and that they only intended to give him a warning (see §48 of the Board’s Decision).  We consider that on the evidence before the Board, it was open to the Board to find that the Applicant’s injury suffered from the beating was relatively mild, and that his creditor had no intention to cause severe ill-treatment or serious harm to him or to kill him. We do not consider the Board’s finding that the Applicant would not face any real risk of severe harm upon refoulement was unreasonable or irrational in the public law sense.

18.In respect of point (2), there is no substance in the Applicant’s complaint that he was not given an opportunity to be heard orally or make further submissions before the Board.  The Applicant attended an oral hearing before the Board on 19 June 2019, and gave testimony in support of his case.  Further, the Applicant has failed to show that there was any particular matter which the Board ought to have sought clarification or elaboration from him.

19.In respect of points (3) and (5), the Applicant’s complaint that the COI considered by the Board was not reliable and his allegation of the hardship that he could face upon refoulement are vague and general.  As mentioned above, the assessment of COI and viability of internal relocations are within the province of the Board.

20.The Applicant has failed to identify or show any error in the Judge’s decision in refusing to extend time for him to apply for leave to apply for judicial review, or grant leave to apply for judicial review.

21.The Applicant’s appeal against the Order has no merits, and is dismissed.

22.This judgment is written in English although the Director’s Decision was written in Chinese, because the Applicant’s Notice of Appeal and affirmation are both 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] See §§1 and 8 of the Director’s Decision.

[2] See §9 of the Board’s Decision.

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

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

[5] 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.

[6] 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.