NGUYEN TUAN ANH alias DAO DUNG MINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 8/2022

[2022] HKCA 1639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 8 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1268 OF 2021)

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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 Cheung JA) handed down on 20 May 2022 ([2022] HKCA 670). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dated 26 October 2021 refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 31 May 2022 that the applicant shall lodge written submissions on or before 14 June 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. He was arrested in Hong Kong on 29 June 2020 and lodged his non-refoulement claim on 19 December 2021. His claim was made on the basis that he would be killed by his creditors in Vietnam due to an outstanding debt of some 2 billion Vietnamese Dong.

4.  He 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 the judge on 7 December 2021[2].

5.  On 7 January 2022, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 20 May 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The applicant stated his grounds of appeal in the Notice of Motion filed on 31 May 2022 which may be summarised as follows:

(1)  If the applicant returns to Vietnam, his life will be seriously threatened because most of the creditors and gangsters in Vietnam are cruel and violent. They disregard the law and are willing to kill people.

(2)  The Director of Immigration (“the Director”) suggested that the applicant could relocate to another place but it is completely unfeasible and it is possible for the creditor and gangsters to find out his new residence.

(3)  The Director did not consider 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.

Analysis and disposition

7.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.

8.  In the present application, the applicant does not have any reasonably arguable basis to show that the Court of Appeal was wrong in dismissing his application. Moreover, he has 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). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

9.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 31 May 2022.