NGUYEN DUC DONG v. TORTURE CLAIMS APPEAL BOARD

CAMP 60/2021

[2022] HKCA 1675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 60 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 675 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down 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 Barma JA) handed down on 27 September 2021 ([2021] HKCA 1374). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan dated 2 September 2020 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 7 June 2022 that the applicant shall lodge written submissions on or before 21 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 appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Vietnam. He entered Hong Kong illegally on 4 January 2017 and was arrested by the police on 5 January 2017. On 23 January 2017, he raised a non‑refoulement claim on the basis that he will be harmed or killed by his creditor for failing to repay the loan if he returns to Vietnam.

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 28 January 2021[2].

5.  On 18 February 2021, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 27 September 2021 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 and affirmation filed on 7 June 2022 which may be summarised as follows:

(1)  If the applicant returns to Vietnam, his life will be seriously threatened because the creditors and 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.

(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 gangster to find out the applicant’s new residence.

(3)  The Director 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.

(4)  The court’s decision was reached unfairly without allowing the applicant an opportunity to clarify his case and the situation in his 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 more than 7 months in filing his Notice of Motion. He did not provide any explanation for the substantial delay. There is no good ground for the court to grant an extension of time for him to file the Notice of Motion.

10.  In any event, the applicant’s grounds in the present application are bound to fail. The Court of Appeal had considered his submissions and given reasons for rejecting his application in the decision dated 27 September 2021. The applicant failed to demonstrate 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).

11.  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 7 June 2022.