HOANG THI MUOI v. TORTURE CLAIMS APPEAL BOARD

CAMP 292 /2022, [2023] HKCA 1025

On appeal from [2021] HKCFI 3910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 292 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1501 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 handed down on 18 January 2023 ([2023] HKCA 74). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 30 December 2021 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal 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 that the applicant shall lodge written submissions on or before 23 March 2023.  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.

3.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 20 November 2019 and surrendered to the Immigration Department.  She raised a non-refoulement claim on 26 March 2020 on the basis that she would be harmed or killed by her creditors if she is returned to Vietnam.

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 the judge on 27 July 2022^[1].

5.  On 8 August 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal.  The application was dismissed by the Court of Appeal on 18 January 2023 as the applicant failed to show any prospect of success in her intended appeal. 

Grounds of appeal

6.  The applicant stated the following grounds in the Notice of Motion filed on 9 March 2023:

(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 and the Director of Immigration.

(2)  If the applicant returns to Vietnam, her life will be seriously threatened because the gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent.  They disregard the law and are willing to kill people.

(3)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles.  The nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.

(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.

7.  In her affirmation, she further contended that 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

8.  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).

9.  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.

10.  The applicant was late for more than 3 weeks in filing the Notice of Motion.  As she did not provide any explanation for the delay, there is no good ground for the court to exercise its discretion to grant extension of time to file her Notice of Motion.

11.  In any event, the applicant’s grounds are not supported by evidence.  She has not demonstrated that the Court of Appeal was wrong in dismissing her application.  In particular, the Court of Appeal was entitled to determine her application for extension of time to appeal without a hearing on the basis of written submissions only.  The applicant was given the opportunity to lodge written submissions in support of her application but she only filed an affirmation without lodging any written submissions.  Besides, she 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).

12.  For all the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 9 March 2023.

[1]     [2022] HKCFI 2226