RE NGUYEN THI BICH THOA

CACV 364/2020

[2021] HKCA 1009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 364 OF 2020

(ON APPEAL FROM HCAL NO 2856 OF 2018)

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J U D G M E N T

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

1.  On 18 May 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Cheung, Chu and Au JJA)  judgment of 7 May 2021 (“the Judgment”)  [2021] HKCA 657.  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 5 August 2020 dismissing her application for leave to apply for judicial review (“the Deputy Judge’s Decision”).

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  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 (“CFA”)  at the discretion of this Court or the CFA if 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 CFA for decision.

4.  In her Notice of Motion, the applicant raised the ground of appeals, which are in gist that (a)  the Court was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration (“the Director’s Decision”); and (b)  the Court was wrong as a matter of law for not having applied the principle of procedural unfairness to the Director’s Decision.  The applicant did not lodge her written submissions as directed by the Registrar of Civil Appeals.

5.  In our view, the applicant’s application is totally without merits.  As stated in the Judgment, in determining an appeal, this Court focuses on the Deputy Judge’s Decision but not the Director’s Decision as suggested by the applicant: see [17] of the Judgment.  It is therefore misplaced to submit that the Court failed to apply the principle of irrationality and procedural unfairness to the Director’s Decision.  In any event, we have in the Judgment reviewed the Deputy Judge’s Decision, we agreed with the reasons therein: see [21] - [23] of the Judgment.  The applicant failed to identify any specific errors in the Judgment.  There are therefore no viable grounds of appeal.

6.  In the circumstances and in any event, we also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

7.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicant’s Notice of Motion.