Re Nguyen Thi Xoa

CACV 374/2026, [2026] HKCA 1089

On Appeal From [2026] HKCFI 1466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 374 OF 2026

(ON APPEAL FROM HCAL NO. 209 OF 2022)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims) Connie Lee (“the Judge”) given on 27 March 2026[1] refusing her application for leave to apply for judicial review against the decision dated 25 March 2022 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated 27 October 2021 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

Background

2.The applicant is a national of Vietnam born in 1986.   She entered Hong Kong illegally and was arrested by the police on 23 November 2020.  On 15 December 2020, she raised a non-refoulement claim on the basis that she feared harm from a moneylender (“Tran”) due to her inability to repay her loan.  The applicant claimed to have borrowed 300 million Vietnamese Dong (VND) from Tran in 2016 to start a marine products business.  Since November 2018, she has not been able to catch up with the monthly interest payments.  Consequently, Tran and his men threatened to kill her on several occasions, and Tran also slapped her on one of the occasions.  Details of the applicant’s claim, the arguments before the Board and the Board’s reasons for rejecting her appeal have been set out in the Board’s decision[6].

3.By a Form 86 filed on 7 July 2022, the applicant applied for leave to judicially review the Board’s decision. She did not raise any grounds for seeking relief in her Form 86.  In her supporting affirmation, she stated that the Board’s decision was reached wrongly without allowing her an opportunity to clarify her case.  Additionally, she also asserted that she faced risk of being killed or tortured because the creditors and gangsters in Vietnam were cruel, violent and  had no regard for the law, and she had yet to agree with her creditor on a repayment plan.  She also said that relocation was not viable as there would be many obstacles and there was no guarantee that she would be safe. 

4.The Judge heard the application at an oral hearing on 21 January 2026.  By a Form CALL-1 dated 27 March 2026, the Judge refused her application.  Her reasons for rejecting the applicant’s arguments are encapsulated in [7] to [10] as follows (footnote omitted):

“7. First, the ground merely consists of general assertions without particulars. The same cannot assist the Applicant. [4]

8. In particular, I do not agree that the Applicant was not given an opportunity to clarify her case. She attended the oral hearing before the Board and confirmed the accuracy and truthfulness of the documents submitted by her. The Board also clarified certain matters with her. The Board was acutely aware of her claim that if refouled, her creditor i.e. Tran and his men would harm and kill her because she could not repay the loan.

9. Second, the Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials. The Board was entitled to find that (1) the threat to harm or kill the Applicant was just an empty threat to pressurize her to repay the loan; (2) her injuries were not serious at all and there was no and no risk of ill-treatment which could attain a minimum of severity; (3) she should have no difficulty to relocate within Vietnam and (4) the Vietnamese government has recently undergone reforms to combat corruption amongst police and to improve their efficiency.

10. Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.  The Board was entitled to come to the conclusions it did and reject her claim.”

Appeal to this Court

5.On 9 April 2026, the applicant filed her Notice of Appeal against the Judge’s decision.  She stated as her grounds of appeal that she disagreed with the Judge’s decision which did not scrutinise her claim properly, and that the court and the Board should not have rejected her claim because the problems in her country were severe and she would be killed by her enemies if she returned to Vietnam.

6.The applicant has lodged written submissions which stated that: (1) the Judge failed to apply the principle of irrationality when the Board had failed to evaluate and find whether there was a consistent pattern of gross and mass violation of human right in Vietnam, and also failed to assess whether state protection existed in Vietnam; (2) the Judge failed to apply the principle of procedural fairness which required the Director and the Board to give reasons for their decisions, when the Board had failed to give the applicant sufficient opportunity to arrange relevant evidence; (3) the Judge did not analyse the applicant’s claim properly despite her problem was severe and all the proof for her claim had been submitted; (4)  the Judge failed to apply the high standard of fairness when the decision has the effect of finally disposing of the applicant’s claim, which involved the applicant’s fundamental human right of not to be subject to torture; (5) the Board significantly relied on sources of news that were not officially recognized or were simply hearsay; and (6) the applicant would face hardship and death in her home country as her enemies are now controlling the government and they are still looking for her.

7.The appeal was listed for hearing on 8 June 2026, but the applicant was absent.  

Discussion

8.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

9.Further, it is well-established that assessments of evidence, country-of-origin information (“COI”), risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

10.We would first make some overall observations about the  numerous grounds and arguments raised by the applicant in this appeal.  Firstly, most of them were not raised in the application before the Judge.  It is established law that it is not open to an appellant to rely on grounds that were not argued in the court below, especially when they are fact-sensitive: Flywin Co. Limited v Strong & Associates Limited (2002) 5 HKCFAR 356 at [37]-[39].  Secondly, they are mostly general assertions that bear no relevance to the facts of the claim or are not borne out by the circumstances of the case.  Thirdly, they also do not engage with the reasons of the Judge in refusing her application and are also not related to the Board’s reasons for dismissing her appeal against the Director’s decision. 

11.Specifically, the grounds and submissions are unarguable for the following reasons:

(1)     In the present case, the Board found that the applicant’s evidence did not show any real risk of harm because the creditor’s threats were “empty threats” aiming at pressurising the applicant to repay her loan and the creditor had no real intention to cause harm.  The Board also found the injury inflicted by the creditor did not attain the minimum level of severity required for protection.  These are findings properly open to the Board on the evidence and for the reasons it gave.  In the circumstances, the applicant’s assertion that her human rights would be violated or she would encounter hardship cannot stand. 

(2)     It follows that the complaint that, notwithstanding the danger to her life, the Judge did not properly consider or analyse her claim also falls away.  In any event, it is evident from the reasons she gave that the Judge had given due consideration to the applicant’s application and the intended judicial review.

(3)     It also follows that the Board did not err in not making a finding as to whether state protection would be available as it was unnecessary. It is also pertinent that the applicant admittedly never made any report to the police.  In any event, the Board had considered the COI and noted that while corruption and inefficiency are common among the police force, the Vietnamese government had undertaken reforms to combat corruption and improve efficiency. 

(4)     As to complaint that the COI was unofficial or hearsay, it is a general assertion without particulars.  The applicant has not identified which piece of COI is flawed and how it will materially affect the correctness of the Board’s assessment.

(5)     On the applicant’s own evidence and as found by the Board, the claim is based on a private loan with no state involvement. It is also the applicant’s evidence that she did not personally know the background of her creditor.  The applicant’s complaint that the Board failed to consider whether there was a consistent pattern of gross and mass violation of human rights has no relevance.  Similarly, the applicant’s assertion that her enemies are in control of the government is also misplaced.

(6)     As to the complaint about lack of procedural fairness, the applicant confirmed at the hearing before the Board all the information contained in the hearing bundle and adopted them as her evidence. She had never made any request to the Board or to the Judge to submit additional evidence to support her claim.  There is also no basis to complain that the duty to give reasons was not met by the Board in light of the detailed reasons it gave.

(7)     The complaint that the Judge failed to apply the high standard of fairness has no relevance since it is not the Judge’s role in judicial review proceedings to consider the applicant’s claim afresh.

12.For the above reasons, the applicant’s appeal has no merits. Accordingly, we dismiss the appeal.

The applicant, unrepresented, absent.

[1] [2026] HKCFI 1466

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

[3] This refers to 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 and its 1967 Protocol.

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