RE NGUYEN THE TOAN

CAMP 456/2022, [2024] HKCA 682

On Appeal From [2022] HKCFI 1233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 456 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 367 OF 2019)

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DECISION

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

1.  On 18 August 2023, this Court handed down decision ([2023] HKCA 976) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Bruno Chan given on 28 April 2022 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 21 August 2023, the applicant filed a notice of motion applying for leave to appeal this Court’s decision to the Court of Final Appeal.

3.  Pursuant to the directions of the Registrar of Civil Appeals also dated 21 August 2023, the applicant was to lodge and serve on or before 4 September 2023 written submissions failing which he will be deemed to have abandoned his right to rely on written submissions and the matter will be considered by this Court based on the available materials.  The applicant has not lodged or served written submission by the stipulated deadline.

4.  Having considered the applicant’s notice of motion, 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.

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

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)(Cap. 484) 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.

7.  The notice of motion stated that :

1)  It was unsatisfactory that the Court of Appeal ruled that the applicant had no chance of success.

2)  If the applicant is refouled to Vietnam he will be threatened or become dead because the gangsters in Vietnam are different to those in Hong Kong most of them being cruel and violent.

3)  The applicant cannot live in another location in Vietnam because there will be many difficulties and obstacle.  The applicant’s health is not good.  There is no guarantee that the applicant can adapt to the new place.

4)  There is a nationwide social network of gangsters with corrupt people in the government.  The gangsters will probably find the applicant.

5)  The problem with the applicant’s appeal is that the Immigration Department did not consider the applicant’s human rights under the Basic Law.

8.  We are of the view that no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

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

10.  As the statutory requirements for giving leave to appeal are not met, we, accordingly, dismiss the notice of motion.