RE BUI MINH HAI

CAMP 182/2021

[2021] HKCA 1717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 182 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 435 of 2018)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  On 24 September 2021, this Court handed down our judgment[1] refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Bruno Chan given on 2 July 2020 refusing his application for leave to apply for judicial review.     

2.  On 11 October 2021, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeals, the applicant has not put in 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 judgment.  We will not repeat them.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

6.  The notice of motion set out two grounds in support of the intended appeal to the Court of Final Appeal as follows:

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

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

7.  The affirmation is substantially the same as the affirmation filed on 20 May 2021 in support of the application for extension of time (see [17] of our judgment).  Essentially, the applicant contended that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review and it is a matter of public importance how the limitation act is being used against the litigants and the Court of Final Appeal should hear this.”           

8.  The grounds and matters put forward in the notice of motion and the affirmation do not constitute viable grounds for giving leave to appeal.  Importantly, they do not involve any question of great general or public importance that ought to be submitted to the Court of Final Appeal for determination. 

9.  Further, as pointed out in [8] and [17] of our judgment, the applicant did not put forward any ground in support of his intended judicial review and his intended appeal from the judge’s decision.  The grounds in the notice of motion contending that the judge and this Court failed to consider irrationality and procedural unfairness are therefore misplaced as no such complaints have been raised before the Court. 

10.  As to the point about limitation raised in the affirmation, it is unclear what is the argument that the applicant seeks to advance, and how it is a question of great general or public importance.                             

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for granting leave to appeal to the Court of Final Appeal are not met, we refuse the application and dismiss the notice of motion.

[1] [2021] HKCA 1390.