VU THI NGOC MY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 104/2023, [2023] HKCA 1075

On Appeal From [2023] HKCFI 711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 104 OF 2023

(ON APPEAL FROM HCAL NO 865 OF 2022)

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J U D G M E N T

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

1.  On 28 March 2023, Deputy High Court Judge K W Lung made an order refusing to grant the Applicant leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 1 August 2022, whereby the Board refused to extend time to the Applicant to file her notice of appeal against the decision of the Director of Immigration dated 17 August 2021 under section 37ZT of the Immigration Ordinance (Cap 115).

2.  On 26 June 2023, this Court gave its judgment (“the CA Judgment”)  dismissing the Applicant’s appeal against the Judge’s order of 28 March 2023.  The basic facts of this case and the Court’s reasons for dismissing the Applicant’s appeal have been set out in the CA Judgment and will not be repeated here.

3.  By Notice of Motion dated 14 August 2023, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal.  In the Notice of Motion, the Applicant states that if she returns to Vietnam, her life will be seriously threatened and she will be tortured, beaten or even killed because creditors and gangsters in Vietnam are cruel and violent and are willing to kill people to satisfy their anger and ferocity.  She says that she cannot relocate to live in another part of Vietnam away from her home for various reasons.  She also alleges that the Immigration Department did not consider her human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

4.  In her affirmation filed on 14 August 2023, the Applicant alleges that the decision made by the Court of Appeal was reached unfairly without allowing her an opportunity to clarify her case or the situation in her home country, and she understands that there is a “good ground of appeal” that was not necessarily considered at the stage of applying for leave for judicial review.  The Applicant has failed, however, to identify what that ground may be.

5.  The Applicant has failed to lodge any written submissions in support of her application for leave to appeal contrary to the directions given by the Registrar of Civil Appeals on 14 August 2023.

6.  Pursuant to paragraph 3 of Practice Direction 2.1, we determine the present application for leave to appeal on paper without an oral hearing.

7.  Under s 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter 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.  No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion.  We are unable to see any such question being involved in the proposed appeal.  The Applicant has not identified any error in the CA Judgment, or raised any viable ground of appeal against the CA Judgment.  The complaint that the Court of Appeal reached its decision unfairly without allowing the Applicant an opportunity to clarify her case or the situation in her home country is plainly without substance in view of the fact that (i)  the Applicant had on 6 April 2023 consented to her appeal being disposed of on paper by the Court without an oral hearing, and (ii)  she had failed to lodge written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 6 April 2023 and was accordingly deemed to have waived her right to rely on written submissions.  We are satisfied that the intended appeal to the Court of Final Appeal has no merits and no reasonable prospect of success.

9.  There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance.

10.  Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.