TA QUANG VINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 588/2020

[2021] HKCA 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 588 OF 2020

(ON APPEAL FROM HCAL NO 976 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Chu JA) handed down on 10 May 2021 ([2021] HKCA 675). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge C P Pang dated 22 October 2020 ([2020] HKCFI 2589) refusing to grant extension of time to seek leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 1 June 2021 that the applicant should lodge written submissions in support of his notice of motion on or before 11 June 2021 and that the notice of motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction.  The applicant has not lodged any written submission as directed.  The time for compliance with the said directions has expired.  Having considered the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 21 May 2014.  He surrendered to the Immigration Department and raised a non‑refoulement claim on 26 May 2014.  His claim was made on the basis that he will be harmed by his former employer if he returns to Vietnam as he failed to repay her financial loss which resulted from the destruction of her pawn shop by fire.

4.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 25 July 2016 and 26 May 2017.  His appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board(“the Board”) on 28 February 2018.

5.  He filed a Form 86 on 30 May 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was made outside the three-month period stipulated under Order 53 rule 4 of the Rules of the High Court (Cap 4).  DHCJ Pang refused to grant extension of time and dismissed the leave application on 22 October 2020.

6.  On 3 November 2020, the applicant filed a notice of appeal against the judge’s decision.  The appeal was dealt with by the Court of Appeal on paper without an oral hearing as the applicant consented to the disposal of his appeal on paper.  The appeal was dismissed by the Court of Appeal on 10 May 2021.  The applicant filed a Notice of Motion on 28 May 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7.  The applicant stated the following grounds of appeal in the Notice of Motion:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director refusing his application for leave for judicial review and the appeal;

(2)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.

Analysis and disposition

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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. 

9.  The applicant’s leave application concerns the Board’s decision rather than the Director’s decision.  In any event, the decision of the Director is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant: Re Moshsin Ali^[1]. Therefore, the applicant’s grounds in relation to the judges’ failure to apply the principle of irrationality and the principle of procedural unfairness to the decision of the Director are wholly without merit.

10.  Besides, the applicant has not put forward any reasonably arguable ground to show that the Court of Appeal was wrong in dismissing his appeal.

11.  He contended in his affirmation in support how the limitation statute is being used against litigants is a matter of public importance and the Court of Final Appeal should hear the matter.  Although the leave application was filed outside the three-month period stipulated under the Rules of the High Court for applying for leave to bring judicial review, the judge accepted that the applicant’s delay was insignificant and hence focused on the merits of the intended application when considering the leave application.  The Limitation Ordinance is not involved in the present proceedings and the judge’s refusal to grant leave has nothing to do with the limitation statute.  The applicant’s contention on public importance is untenable.  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). 

12.  For all the above reasons, we refuse to exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 28 May 2021.