DOAN VAN KHOI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 485/2022, [2023] HKCA 837

On An Intended Appeal From [2022] HKCFI 1938 &

[2022] HKCFI 2783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 485 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1101 OF 2019)

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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 24 April 2023, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s application for leave to appeal out of time against the order of Deputy High Court Judge K W Lung dated 23 September 2022 refusing to grant an extension of time for the Applicant to appeal against the Judge’s earlier order dated 27 June 2022 refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 12 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration dated 9 May 2018.

3.  By Notice of Motion dated 2 June 2023, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the Applicant repeats his allegation that if he returns to Vietnam, his life will be seriously threatened and he may even be killed by Vietnamese public security officials for having published articles critical of the Vietnamese government. He also alleges that the Director failed to consider his human rights under the Basic Law and various other international instruments such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. In his affirmation filed on the same date, the Applicant complains that the decision of the High Court was reached unfairly without giving him an opportunity to clarify his case and the situation in his country. He also says that he understands there is a good ground of appeal that was not necessarily considered at the stage of applying for leave to apply for judicial review, but fails to identify what that ground may be.

4.  The Applicant has failed to file written submissions in support of his application contrary to the directions given by the Registrar of Civil Appeals on 2 June 2023.

5.  In neither the Notice of Motion nor his affirmation has the Applicant identified any error in the CA Judgment or any proper ground of appeal against the CA Judgment. The complaint that the decision of the High Court was reached unfairly without giving him an opportunity to clarify his case and the situation in his country has no substance. In his original application for leave to apply for judicial review, the Applicant did not request for an oral hearing. The Judge was entitled, in view of the apparent lack of merits of the intended application and in the proper exercise of his discretion, to deal with the leave application on paper under Order 53, Rule 3(3) of the Rules of the High Court, Cap 4A. In so far as his summons dated 21 November 2022 to the Court of Appeal is concerned, the Court of Appeal was likewise entitled, in the exercise of its discretion, to deal with it on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court. His other allegations are general allegations without particulars.

6.  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.

7.  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. We are satisfied that the intended appeal has no merits and no reasonable prospect of success. 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.

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