Vu Kim Yen v. Torture Claims Appeal Board

CACV 295/2025, [2025] HKCA 979

On Appeal from [2025] HKCFI 1909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 295 OF 2025

(ON APPEAL FROM HCAL NO 1847 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 Bruno Chan (“the Judge”) dated 9 May 2025 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 27 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 November 2016.

BACKGROUND

2.The Applicant is a national of Vietnam.  She first entered Hong Kong illegally on 16 May 2013 and was repatriated back to Vietnam on 27 June 2013.  In June 2015, she sneaked into Hong Kong again.  On 19 December 2015, she was arrested by the police in Hong Kong for the offences of remaining in Hong Kong without the authority of the Director and obtaining pecuniary advantage by deception, for which she was subsequently convicted and sentenced to 15-month imprisonment[1]. On 19 February 2016, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor (Tran Quoc Tuan) over her unpaid debts.  Details of the Applicant’s claim have been summarised by the Judge at §§1-6 of the CALL-1 Form.

3.By a Notice of Decision dated 24 November 2016 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[2], BOR 3 risk[3], persecution risk[4], and risk of torture[5].

4.The Applicant appealed against the Director’s Decision to the Board.  On 27 June 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 §10 of the CALL-1 Form, as follows:

“In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from any creditor that caused her to leave her country to come to Hong Kong to seek protection, that even if her account of events were true that there was no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Vietnam as well as financial support and assistance from the relevant government departments and NGOs for her at her age if so required, and that reasonable internal relocation alternatives are also available for her to move safely to other parts of the country away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.”

5.On 3 July 2019, 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 or her supporting affirmation of the same date.

6.On 9 May 2025, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[12] As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate [her] claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh…

[13] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[14] In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

THIS APPEAL

7.In her Notice of Appeal filed on 15 May 2025, the Applicant repeats her claim that her life will be seriously threatened, and she will probably die if she 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.  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 filed on 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 she fails to identify what that ground might be.  She also states that she has been informed that the Director and the Board “did not see the grounds to reverse their decisions”, without giving any further explanations or particulars.

9.In her skeleton arguments, she argued that:

(1)  the Board had taken irrelevant matters into consideration and failed to take relevant matters into consideration;

(2)  the Board had failed to apply a high standard of fairness;

(3)  the Board had failed to exercise independent assessment;

(4)  the Board’s decision was irrational.

10.It should be noted that the above skeleton arguments was lodged only on 31 October 2025.  In other words, it was lodged beyond the deadline imposed by the Registrar of Civil Appeals on 16 September 2025.  It had been made clear by the Registrar of Civil Appeals that, in the event the Applicant failed to lodge written submissions in support of her appeal not less than 28 days before the hearing of the appeal (i.e. by 8 October 2025), she shall be deemed to waive her right to have an oral hearing of this appeal and elect to have it disposed of on paper.  Accordingly, the hearing date fixed was vacated, and we shall deal with the Applicant’s appeal on paper without an oral hearing. 

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, 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 and supporting affirmations are general assertions without particulars, while the complaints in the skeleton arguments are directed at the Board.  They do not relate to the Judge’s reasons for refusing to grant her leave to apply for judicial review and do not constitute any valid ground of appeal against the Judge’s decision.

14.The Applicant has failed to identify or show any error in the Judge’s decision in refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. 

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

16.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 §§10 and 11 of the Board’s Decision.

[2] 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.

[3] 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.

[4] 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.

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