RE TIEU VAN THUYET

CACV 72/2023, [2025] HKCA 1058

On appeal from [2023] HKCFI 557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 72 OF 2023

(ON APPEAL FROM HCAL NO. 1133 of 2019)

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JUDGMENT

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Hon Chu VP giving the Judgment of the Court:

1.  On 13 June 2025, this Court handed down a judgment [2025] HKCA 529 dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 2 March 2023 refusing to grant him leave to apply for judicial review.

2.  On 22 August 2025, 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.  He has also lodged a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, 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 his notice of motion.

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

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, 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 late by about six weeks, which is not an insignificant delay.  In his supporting affirmation, the applicant explained he had been detained at the Castle Peak Bay Immigration Centre was only told by the case worker that his appeal had been dismissed.  He also said that being unrepresented and uneducated, he was not aware of the time limit for appeal and required assistance to draft the appeal papers.  

7.  From the address in the Notice of Motion and accompanying affirmation, we accept that latest by August 2025 the applicant has been detained in the immigration centre.  The judgment was sent to the address stated in the Notice of Appeal, which is in Mongkok.  Probably it did not reach the applicant at the time.  However, it is the duty of the applicant to promptly inform the Court of any change in his address.  We are therefore not persuaded that the applicant has satisfactorily explained his delay.  Nevertheless, considering that he is unrepresented and has been held in custody, we will focus on the merits of the present application.

8.  On the merits of the application, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

9.  The notice of motion set out three grounds of appeal:

(1)  The Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director, whereby the Director and the Adjudicator were required to give reasons justifying the decisions.

(2)  The Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration in refusing the application for judicial review.

(3)  The decision maker relied on country of origin information and facts that favour the rejection of the applicant’s claim. Actual life is different. The officers and the Court had ignored the overwhelming evidence of violence committed on the minorities.

(4)  It is an error of law of great general or public importance that the decision maker has not considered all relevant aspects of the applicant’s case.  

(5)  The Judge did not apply the law properly and there has been procedural unfairness. 

10.  The written submission referred to several authorities on high standard of fairness and the principle of Wednesbury unreasonableness, and argued that the high standard of fairness applied because of the importance of the decision to the applicant.  It also complained that the Torture Claims Appeal Board acted in a procedurally unfair manner in assessing his credibility.

11.  We are of the view that the matters put forward in the notice of motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal:     

(1)  They all relate to the applicant’s personal circumstances and his claim, and do not involve any question of great general or public importance. 

(2)  The complaints about procedural unfairness and irrationality for the reasons we gave at paragraphs 13 to 15 of our judgment, the complaints of irrationality and procedural unfairness were not raised as a ground for judicial review before the Judge or as a ground of appeal before this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the appeal before it.[1]  Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[2]  This is particularly the case when the new complaints were no more than general assertions without particulars.      

(3)  The complaint that the Torture Claims Appeal Board wrongly assessed his credibility is also misplaced because the Board did not make an adverse finding on the applicant’s credibility and had assessed his claim based on his factual case.   

(4)  The applicant has also not shown how the legal principles and authorities cited in his written submission relate to his case.   

12.  We also do not see any basis for the “or otherwise” limb under section 22(1) (b). 

13.  In conclusion, the statutory requirements for giving leave to appeal are not met.  Having regard to the delay and the lack of merits of the present application, 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.