Re v. Thi Bich

CACV 801/2026, [2026] HKCA 1771

On Appeal From [2026] HKCFI 4125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 801 OF 2026

(ON APPEAL FROM HCAL NO. 97 OF 2023)

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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 Bruno Chan (“the Judge”) given on 24 July 2026[1] refusing her application for leave to apply for judicial review against the decision dated 17 January 2023 of the Torture Claims Appeal Board (“the Board”). The Board had dismissed her appeal against the decision dated  25 February 2022 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 1983.  She entered Hong Kong illegally and was arrested by the police on 12 July 2021.  She subsequently raised a non-refoulement claim on the basis that she feared harm from a loan shark due to her husband’s  inability to repay the debt he owed to the loan shark.  The applicant claimed that her husband owed 1 billion VND to the loan shark due to gambling, and he had escaped to Hong Kong.  The loan shark and his people demanded her to repay the debt, and uttered oral threats but did not physically assault her.  For fear of her personal safety, she also fled to Hong Kong.  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 20 January 2023, the applicant applied for leave to judicially review the Board’s decision.  Her grounds for seeking relief were summarised in [9] of the Form CALL-1 dated 24 July 2026 as follows:

“(1) That the Board reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from the killings that she may face if deported back to her home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her claim;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing her claim;

(4) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required her to respond to questions that she was not in a position to offer any response;

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.”

4.The Judge heard the application at an oral hearing on 8 July 2026.  The Judge refused her application on the ground that her intended judicial review had no prospect of success.  His reasons for rejecting the grounds put forward by the applicant were set out in [10] to [14] of the Form CALL-1 dated 24 July 2026 as follows (footnote omitted):

“10. These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her husband’s creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, nor was she able to do so at the hearing of her application, I do not find any of her proposed grounds reasonably arguable for her intended challenge.

11. 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 his 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: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s 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, a decision also agreed and confirmed by the Board, 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.”

Appeal to this Court

5.On 3 August 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.At the hearing of the appeal, the applicant indicated she had nothing to add.  

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, many 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 regarding the loan generic, deficient, lacking in essential particulars, changing and inconsistent. The Board rejected her evidence and her claim as untruthful and found she would not face any harm from the loan shark, his associates or any one for any reasons if she were to return to Vietnam.  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.  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. Further, 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. 

(3)  As to the submissions relating to the use of country-of-origin information (COI), they bear no relevance to the applicant’s case.  The Board did not refer to any COI as it considered, correctly in our view, it was not necessary to consider the issue of viability of internal relocation.  Similarly, the submissions about the political situation in the applicant’s country is also irrelevant as the applicant’s claim is totally unrelated to this.  Likewise, the applicant’s assertion that her enemies are in control of the government is also misplaced.

(4)  As to the complaint about lack of procedural fairness, the applicant 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.

(5)  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 4125

[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.

[6] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000097_2023_files/the_Board's_Decision.pdf