DO DUY MINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 314/2022

[2025] HKCA 608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 314 OF 2022

(ON APPEAL FROM HCAL NO 657 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  By a judgment dated 19 December 2022 ([2022] HKCA 1858) (“the Judgment”), this court dismissed the Applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 2 August 2022 ([2022] HKCFI 2355) (“the Decision”), whereby the Deputy Judge refused his application for leave to apply for judicial review.

2.  On 20 April 2023, the Applicant filed a Notice of Motion to apply for leave to appeal out of time to the Court of Final Appeal against the Judgment.

3.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

5.  Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from. Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 16 January 2023. Accordingly, the applicant was over three months late in taking out his application for leave to appeal to the Court of Final Appeal.

6.  Although the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein. In deciding whether there are such good grounds, the court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d)the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

7.  In his Notice of Motion, the Applicant reiterates that his life will be in danger if he returns to Vietnam and that creditors and gangsters in Vietnam are cruel and violent and are willing to kill people to satisfy their anger and ferocity. He also alleges that internal relocation is not feasible because there will be many difficulties and obstacles that he will have to face in the new location and that his health is not good as he is not an active person. He further says that the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus make it quite possible for the creditor and gangsters to find out his new address. He further alleges that the Immigration Department did not consider his human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights.

8.  In his supporting affirmation, the Applicant only alleges that the Judgment was unfair as it was reached without allowing him an opportunity to clarify his case and situation in his country. He further claims that there is a good ground of appeal that was not considered at the stage of his application for leave to apply for judicial review. However, he fails to specify what the said ground is.

9.  Contrary to Practice Direction 2.1, the Applicant fails to lodge his written submissions.

10.  At the outset, it is noted that a delay of over three months is substantial and he fails to give any reason, let alone good reason, for his delay.

11.  More importantly, his intended appeal has no merit at all. The matters raised in his Notice of Motion are all general and bare allegations without any specific particulars or explanation. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. Furthermore, his complaints are mainly at the Director’s and the Board’s Decisions. He fails to give any specific particulars as to how the Judgment has erred. As stated at [25] of the Judgment, it is trite that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. Furthermore, the applicant already had ample opportunities to clarify his case and country conditions before this court through both oral and written submissions. There is plainly no basis to his complaints. Accordingly, his allegations do not constitute proper grounds of appeal and are in any event devoid of merit.

12.  Even taking his case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

13.  Accordingly, the Applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO. We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

14.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal. Accordingly, the Notice of Motion is dismissed.