RE NGUYEN QUANG HIEN

CACV 135/2021, [2023] HKCA 1070

On Appeal From [2022] HKCA 1704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 135 OF 2021

(ON APPEAL FROM HCAL 1289 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.  By a judgment dated 16 November 2022 ([2022] HKCA 1704)  (“the Judgment”), this court dismissed, inter alia, the 1^st applicant’s appeal against the HCAL 1289 Decision (as defined in the Judgment)  contained in the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 23 March 2021 ([2021] HKCFI 672)  (“the Decision”), whereby the Deputy Judge dismissed his application for leave to apply for judicial review.[1]

2.  On 3 July 2023, the 1^st applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against the Judgment.

3.  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.

4.  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.

5.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the 1^st applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 14 December 2022.  Accordingly, the 1^st applicant was late for over six months in taking out his application for leave to appeal to the Court of Final Appeal.

6.  As the 1^st applicant did not apply for leave to appeal to the Court of Final Appeal within time, the court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

7.  In his Notice of Motion, the 1^st applicant alleged that this court did not apply the law properly and failed to apply the principles of procedural unfairness and irrationality to the Director’s Decision.  The 1^st applicant further alleged that the decision maker just relied on Country of Origin Information (“COI”)  but actual life situation differed from those in the COI. The 1^st applicant then alleged that the decision makers and the court ignored the overwhelming evidence of violence “towards minorities searching for unrealistic silver lining”.  He then asserted that his life was in danger in his home country and that he would be killed or harmed if he returned.  However, the 1^st applicant’s allegations are all bare and vague without specific particulars or evidence in support.

8.  In his supporting affirmation, the 1^st applicant only stated that he “was unaware of the rules regarding the 14-days time limit and was unrepresented” and that he did not receive any correspondence from the court as he was serving his sentence in the Correctional Institution.

9.  Contrary to Practice Direction 2.1, the 1^st applicant did not file any written submissions.

10.  At the outset, the 1^st applicant’s delay of over six months was substantial.  The burden was on him to provide an updated address to ensure that any correspondences from the court could reach him in a timely manner.  As such, his allegation that he was in a correctional institution and that he was not legally represented are not good reasons for his inordinate delay.  Likewise, ignorance of the time limit in taking out his application is not a good reason for his substantial delay.

11.  In any event, for present purpose, the 1^st applicant’s application is plainly devoid of merits.  His assertions are all vague, bare and unsupported by any specific particular or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, he did not identify any specific error in the Judgment.  Clearly, his assertions do not constitute proper grounds of appeal.

12.  Moreover, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: 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].

13.  Further and in any event, even taking it at its highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

14.  Accordingly, the 1^st applicant has 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.

15.  For these reasons, the Notice of Motion is dismissed.