NGUYEN THI HOA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 488/2021

[2023] HKCA 437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 488 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1246 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Au JA) handed down on 29 April 2022 ([2022] HKCA 559). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge C P Pang dated 25 March 2021 refusing to grant leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 27 September 2022 that the applicant shall lodge written submissions on or before 11 October 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Vietnam. She arrived in Hong Kong illegally on 27 June 2013 and was arrested by the police on 10 July 2013 for using a forged Hong Kong Identity Card. She was sentenced to 15 months in prison and lodged her non-refoulement claim on 15 May 2014. The basis for her claim was that she would be harmed or killed by her husband for being unwilling to participate in drug trafficking and other domestic violence claims.

4.  She took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by DHCJ Bruno Chan on 15 October 2021[1].

5.  On 28 October 2021, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 29 April 2022 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  The applicant stated her grounds of appeal in the Notice of Motion and affirmation filed on 27 September 2022 which may be summarised as follows:

(1)  It was unsatisfactory for the Court of Appeal to rule that the applicant had no chance of success in reviewing the decision of the Torture Claims Appeal Board.

(2)  If the applicant returns to Vietnam, her life will be seriously threatened because her husband is very cruel and violent.

(3)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles.

(4)  The Director of Immigration did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

(5)  The court’s decision was reached unfairly without allowing the applicant an opportunity to clarify her case and situation in her country.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), 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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

8.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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 applicant was late for 4 months in filing the Notice of Motion and she did not provide any explanation for the substantial delay. There is no good ground for the court to grant extension of time for the applicant to file the Notice of Motion.

10.  In any event, the applicant’s grounds of appeal are not supported by evidence. She also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). Further, there is no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11.  For the above reasons, the Notice of Motion filed on 27 September 2022 for leave to appeal to the Court of Final Appeal is dismissed.