Duong Thi Thanh Thuy and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 1249/2025, [2026] HKCA 1510

On Appeal From [2025] HKCFI 5928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1249 OF 2025

(ON APPEAL FROM HCAL NO 1730 OF 2020)

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BETWEEN

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J U D G M E N T

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Hon Mimmie Chan J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 17 December 2025[1] (“the Leave Decision”) refusing to grant leave for the applicants to apply for judicial review.  The intended judicial reviews were lodged by:

(a)  the 1^st to 3^rd applicants against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 5 August 2020 (“the Board’s 1^st Decision”) dismissing the 1^st to 3^rd applicants’ appeals against the decision of the Director of Immigration (“the Director”) dated 21 June 2018 rejecting the 1^st to 3^rd applicants’ non-refoulement claims; and

(b)  the 4^th applicant against the decision of the Board dated 6 July 2023 (“the Board’s 2^nd Decision”) dismissing the 4^th applicant’s appeal against the decision of the Director dated 2 March 2020 dismissing the 4^th applicant’s non-refoulement claim.

Background

2.The 1^st applicant is a national of Vietnam.  She is the mother of the 2^nd to 4^th applicants.  The 2^nd applicant (the 1^st applicant’s daughter) and the 3^rd and 4^th applicants (the 1^st applicant’s sons), who were respectively born in Hong Kong on 30 December 2015, 22 July 2017 and 18 April 2019, are minors.  The 2^nd to 4^th applicants’ non-refoulement claims (as well as their leave applications in the Court below and the present appeals) were lodged by the 1^st applicant on their behalf. 

3.The background to this case, the applicants’ bases to their claims and the reasons given by the Board in its 1^st and 2^nd Decisions have been set out therein[2] and summarised by the Judge in the Leave Decision at [13]-[18], which will not be repeated.

4.After considering the documents filed as well as the submissions made by the 1^st applicant (on behalf of herself and the other applicants) at the hearing of the leave applications, the Judge dismissed the applications for the reasons stated in the Leave Decision. 

Appeal to this court

5.By a Notice of Appeal dated 30 December 2025, the 1^st applicant (on behalf of herself and the other applicants) stated:  

“We do not agree with the decision of the Court of First Instance.  Our life is not safe in our home country.”

6.In the 1^st applicant’s written submissions dated 3 June 2026 (lodged also on behalf of the other applicants), she repeated the dangers she may face should she be refouled, such as the risk of her being killed by her “enemies” and that they are apparently “controlling the power of government” in Vietnam.  The 1^st applicant also contended inter alia, without elaboration or particulars, that (i) the Leave Decision was unreasonable; (ii) the Judge was wrong as a matter of law for not having applied “the principle of irrationality” and “the principle of procedural unfairness”; (iii) high standards of fairness were not adhered to; and (iv) there was irrationality in the Board’s Decisions as regards whether state protection was available to the applicants.

7.We heard the appeal on 18 August 2026, at which the applicants appeared in person.  At the hearing, the 1^st applicant submitted that she is a single mother and that she has broken up with her ex-boyfriend.  She submitted that if the 2^nd to 4^th applicants were refouled, they would be unable to adapt to life in Vietnam as they have been educated in Hong Kong.  She further submitted that her youngest son suffers from some form of a brain disease, and attempted to hand up medical records in support of the same.  However, as those records have not been placed before the Judge in the Court below, we will not consider the same on appeal, but we will take note of her submission on her son’s condition. 

Discussion

8.As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

9.In our view, the 1^st applicant has wholly failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. 

10.In the present case and in respect of the 1^st applicant’s claim, the Board found that the primary threat of harm posed to the 1^st applicant (as claimed by her) from her ex-boyfriend (by reason of a debt she owed to him) was not substantiated on the facts, as, although threats of assault have been issued by him to the 1^st applicant, no physical harm has ever come to the 1^st applicant at the hands of her ex-boyfriend.  Moreover, the Board found that the risk of harm was localised to her home location, and that state protection was available to the 1^st applicant in order to minimise the risk of harm, if any. 

11.These were factual findings and conclusions open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [13]-[15] and [19]-[28].  We see no basis to interfere.  

12.Accordingly, the 1^st applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its 1^st Decision with regards to her appeal/claim, or how such Decision could be said to be Wednesbury unreasonable.

13.It is however necessary for this court to consider the positions of the 2^nd to 4^th applicants separately, as they are minors and have not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A).  See Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971. 

14.We note that despite previous directions made by the Registrar of Civil Appeals on 7 January 2026, no steps have been taken to comply with the requirements under Order 80, rule 2.  Accordingly, directions were given by the Registrar on 10 April 2026 regarding the conduct of the appeals, with the appeals subsequently referred to this Court for determination.  On 18 May 2026 however, the applicants belatedly applied for legal aid and filed Memoranda of Notification of an Application for Legal Aid.  Their applications were rejected by the Director of Legal Aid on 28 July 2026.

15.We now turn to the 2^nd to 4^th applicants’ appeals.

16.The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that:

(a)  Non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;  

(b)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;  

(c)  Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

17.The position is therefore that while the reality remains in the majority of cases involving minors that the factual basis of the minor’s claim would be dependent on or even entirely rest upon that of the parent’s, regard must be had to the personal circumstances of the minor (and any risks of harm posed to the minor) by the decision-maker.  In this case, like the majority of similar cases involving minor applicants, the basis of the 2^nd to 4^th applicants’ perceived fear or risk of harm upon refoulement rested upon the primary case of their mother’s.

18.We shall first proceed to determine the appeals of the 2^nd and 3^rd applicants, before dealing with that of the 4^th applicant.

19.The 1^st applicant’s case, as presented to the Board on behalf of the 2^nd and 3^rd applicants, was that her ex-boyfriend has threatened to harm or kill them should they return to Vietnam (Board’s 1^st Decision, [12]).  She also claimed, inter alia, that internal relocation within Vietnam would be difficult, financially or otherwise, by reason of her having to care for the 2^nd and 3^rd applicants (Board’s 1^st Decision, [13]-[14]).

20.In the application below, the Judge noted that the 2^nd and 3^rd applicants were not legally represented before the Board, and he also took the view that the Board in its 1^st Decision failed to separately consider the claims of the 2^nd and 3^rd applicants and/or risks of harm posed to them upon refoulement (Leave Decision, [23]).  However, the Judge concluded that as the Board’s 2^nd Decision (which pertained to the 4^th applicant’s claim) had duly considered the “minor issues in Vietnam”, the same considerations would “equally [apply] to [the 2^nd and 3^rd applicants]” (Leave Decision, [23]).

21.With respect to the Judge, we do not agree with his reasoning.

22.As mentioned above, the principles set out in Fabio obligates the decision-maker, in this case the Board, to separately consider and assess the situation and risks of minor applicants upon refoulement.  It would be wrong in principle to suggest that merely because the Board had adequately considered minor specific issues or risks in respect of the 4^th applicant and had drawn conclusions thereto, that the same conclusions must also apply to the 2^nd and 3^rd applicants notwithstanding that there has been no separate consideration by the Board of their own individual circumstances.

23.Notwithstanding our disagreement with the Judge’s reasoning at [23] of the Leave Decision in respect of the 2^nd and 3^rd applicants however, having considered and subjected the Board’s 1^st Decision to anxious scrutiny, we are of the view that despite the Board’s very brief discussion of the circumstances and risks specifically posed to the 2^nd and 3^rd applicants, it cannot be said that the Board had altogether neglected to discharge its duty to separately consider their claims. 

24.For instance, at [42] and [43] of the Board’s 1^st Decision, the Board noted that the 2^nd and 3^rd applicants, who were born in Hong Kong, have never been threatened nor harmed by the 1^st applicant’s ex-boyfriend or his associates, and thus the risk of harm, of the required minimum level of severity, had not been established.  Further, at [62] and [63], the Board considered that state protection was available to the 2^nd and 3^rd applicants in order to minimise the risk of harm (if any), and that the 1^st applicant, being an able-bodied adult, would be capable of caring for and internally relocating with the 2^nd and 3^rd applicants. 

25.The Board therefore, on balance, cannot be said to have failed to consider the circumstances of the 2^nd and 3^rd applicants separately, although as mentioned above, the Board’s reasoning in this respect was undesirably brief and merited more elaboration and discussion.

26.As for the 4^th applicant’s appeal, having considered the Board’s 2^nd Decision and subjected the same to anxious scrutiny, we are of the view that the Board has adequately considered the position of the 4^th applicant as a minor in its dismissal of his appeal.  The Board was alive to, and expressly referred to, the principles contained in Fabio and Re Jasvir Singh (Board’s 2^nd Decision, [55]-[57]).  Separate consideration was given to the 4^th applicant’s wellbeing as a minor upon refoulement, as well as the protection and suitability of him being brought up in Vietnam should he be refouled (Board’s 2^nd Decision, [93]-[106]).  The Board thus cannot be faulted in its conclusions reached in its 2^nd Decision as regards the 4^th applicant’s claim.

27.For completeness, in the case of the 2^nd to 4^th applicants, we do not consider there to be any indication that the merits of their claim (or any underlying matter that may support minor-specific non-refoulement grounds) had not been adequately explored before the Judge due to the lack of legal representation. 

28.Accordingly, the 2^nd to 4^th applicants have also failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its 1^st and 2^nd Decisions with regard to their appeals/claims, or how such Decisions could be said to be Wednesbury unreasonable.

29.In the premises, the 1^st to 4^th applicants have advanced no viable grounds of appeal against the Judge’s decision, and their appeals are accordingly dismissed.

The applicants appearing in person