RE NGUYEN VAN HIEN

CAMP 38/2023, [2024] HKCA 807

On Appeal From [2022] HKCFI 1438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 38 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2340 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1.  On 19 January 2024, this Court handed down decision ([2024] HKCA 57) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge KW Lung given on 19 May 2022 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 4 March 2024, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant has not lodged any written submission.

3.  Having considered the applicant’s notice of motion, and affirmation, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our decision.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by around 19 days.  The applicant did not explain in the supporting affirmation his delay, but simply said that he believed the merits of the appeal justified allowing the appeal out of time.

7.  As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO provides that leave to appeal to the Court of Final Appeal may be granted 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.

8.  The notice of motion stated the following in summary :

1)  Our ruling was unsatisfactory;

2)  The applicant cannot return to Vietnam because if he does he will be tortured and even killed;

3)  The applicant cannot relocate to another part of his home country because his health is not good and he will face difficulties if he returns;

4)  The applicant cannot relocate because his creditors have a nationwide network and can locate him; and

5)  The Director did not consider his human rights under the law.

9.  In the applicant’s supporting affirmation, he stated that the decision of the Court was reached unfairly without allowing him the opportunity to clarify his case.  He further stated that a good ground of appeal was not necessarily considered at leave stage.

10.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.