RE NGO QUANG THI

CAMP 195/2021

[2022] HKCA 186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 195 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 536 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 8 December 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au and Chow JJA)  judgment of 2 December 2021 (“the Judgment”)  ([2021] HKCA 1809). In the Judgment, we dismissed the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 12 August 2020, refusing to grant leave to the applicant to apply for judicial review ([2020] HKCFI 1917).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.  In his Notice of Motion, the applicant claimed that if he returned to Vietnam, his life would be seriously threatened because the creditors and gangsters in Vietnam were cruel and violent and they disregarded the law and would be willing to kill people to satisfy their anger and ferocity.  He also claimed that as he had not agreed on a repayment plan with his creditor, his life would be in danger and he would be killed if he returned to Vietnam.  He further contended that the Immigration Department failed to consider his human rights.

5.  The applicant lodged his written submissions on 13 December 2021.  In his written submissions, he repeated the alleged factual basis of his non-refoulement claim.  The applicant then cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness was required in the determination of a torture claim.  He submitted that the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is however noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

6.  In our view, the applicant’s intended appeal has no merit at all. None of the matters raised in his Notice of Motion has identified any specific error in the Judgment.  General assertions of his fear to return to his home country simply do not constitute viable grounds of appeal.  The matters raised in his Notice of Motion are all general and bare allegations unsupported by specific particulars or evidence.  Clearly, they do not constitute proper grounds of appeal.

7.  Moreover, aside from the alleged factual basis of his non-refoulement claim, none of the arguments raised in his written submissions were argued before the Deputy Judge or before this Court in his earlier application for extension of time to appeal.  It is not permissible for the applicant to put forward new grounds in his application for leave to appeal to the Court of Final Appeal.  In any event, they are all general and bare assertions unsupported by particulars.  The applicant has also failed to show how the legal propositions as stated in his written submissions relate to his case.  More importantly, none of his submissions has identified any error in the Judgment. As such, they are not viable grounds of appeal.

8.  In any event, the applicant’s contentions are also fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant has also failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the Notice of Motion filed on 8 December 2021 is dismissed.