Hoang Trong Trung v. Torture Claims Appeal Board

CACV 233 /2025, [2026] HKCA 566

On appeal from [2025] HKCFI 1396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 233 OF 2025

(ON APPEAL FROM HCAL NO 310 OF 2020)

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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 16 April 2025, Deputy High Court Judge Michael Wong refused to grant leave for the applicant to apply for judicial review out of time against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement claim[1]. The applicant filed a Notice of Appeal against the said decision on 25 April 2025.

2.The applicant is a national of Vietnam.  He entered Hong Kong illegally on 3 January 2014 and was arrested by the police on 4 January 2014.  He lodged his non-refoulement claim on 13 January 2014.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditors.

Decisions of the Director and the Board

3.By a Notice of Decision dated 22 October 2015, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 3 risk[3] and persecution risk[4]. 

4.By a Notice of Further Decision dated 7 April 2017, the Director rejected the applicant’s claim on BOR 2 risk[5] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.

5.He lodged an appeal with the Board and attended the hearing before the Board on 23 January 2018.  He submitted at the hearing although he would be very pleased to stay in Hong Kong, he would not mind and would be very pleased to return to Vietnam if he would not be permitted to stay. He indicated that the creditors were no longer looking for him because of the lapse of time so he should be safe to return.  Therefore, the Board assessed there are no grounds for non-refoulement protection and dismissed the appeal on 5 February 2018.

6.The applicant was repatriated to Vietnam on 20 March 2018.  He was arrested by the police in Hong Kong on 12 March 2019.  The applicant requested to make a subsequent claim for non-refoulement protection on 16 September 2019. The Director considered that the central piece of the applicant’s claimed fear of treatment from his creditor is not credible because of substantial discrepancy in the claimed facts.  The Director further found that the applicant’s bare assertions cannot demonstrate any change of circumstances which warrant the making of a subsequent claim.  Therefore, the request to make a subsequent claim was refused by the Director on 13 December 2019.

The judge’s decision

7.The applicant filed a Form 86 and an affirmation on 5 March 2020 to seek leave to apply for judicial review against the decision of the Board.  He stated that he did not agree with the Board’s decision and that he cannot go back to his home country because his life is in danger there, without putting forward any specific grounds for his intended challenge.

8.Deputy High Court Judge Michael Wong dealt with the application on paper.  The leave application was made out of time.  The applicant did not provide any explanation for the substantial delay.  The judge considered that the application can be dismissed on the ground of delay alone. The judge also examined the merits of the intended judicial review and held there is no error or law, procedural unfairness or irrationality in the Board’s decision.  The judge concluded that the intended judicial review has no realistic prospect of success and dismissed the leave application on 16 April 2025.

Grounds of appeal

9.The applicant stated the following grounds of appeal in the Notice of Appeal filed on 25 April 2025:

(1)  If he returns to Vietnam, his life would be seriously threatened or he would probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong.  They disregard the law and are willing to kill people;

(2)  It is completely unfeasible for him to change to live in another location as he would face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(4)  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.

10.The applicant submitted a written consent for this appeal to be disposed of on paper without an oral hearing.  He did not lodge any written submissions by the prescribed deadline as directed by the Registrar of Civil Appeals.

Legal principles

11.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.

12.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

13.The applicant’s grounds of appeal are just bare assertions without sufficient particulars or evidence in support.  He also failed to identify any error in the judge’s decision.  The appeal is devoid of merit and is dismissed accordingly.

The Applicant (Appellant), acting in person