RE BUI VAN TOAN

CAMP 162/2022, [2024] HKCA 419

On Appeal From [2022] HKCFI 42

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 162 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1197 OF 2021)

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DECISION

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

1.  On 1 November 2022, this Court handed down decision ([2022] HKCA 1630)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge K W Lung given on 5 January 2022 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 16 May 2023, 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 over five months.  The applicant in the supporting affirmation stated, amongst other things, that the merits of his case constituted sufficient reason for the Court to exercise its discretion in allowing 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.  In summary the applicant stated the following in the notice of motion :

1)  This is an extension of time to appeal case.

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

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

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

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

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

7)  The applicant asks the Court of Appeal for a chance to seek justice.

9.  In summary the applicant further stated the following in his supporting affirmation :

1)  The Court of Appeal’s decision was reached unfairly without allowing the applicant an opportunity to clarify; and

2)  A good ground of appeal was not necessarily considered at the stage of his application for leave to apply for judicial review.

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.