RE NGUYEN VAN DAT

CAMP 295/2021

[2023] HKCA 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 295 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1147 OF 2018)

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J U D G M E N T

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

1.  This court handed down judgment on 12 July 2022 ([2022] HKCA 986) dismissing the applicant’s application to extend time to appeal against an order of DHCJ Bruno Chan given on 11 August 2020 in which he refused the applicant’s application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 15 September 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) (Cap. 484) stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from. Excluding the Summer Vacation (1 - 31 August) as provided under section 31(1) of the High Court Ordinance (Cap. 4), the deadline for filing the Notice of Motion expired on 9 September 2022.

4.  However, under sections 24(5) and 24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period. In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5.  In the present case, the applicant was late by 6 days which is not substantial. However, no reasons for the delay were given in the Notice of Motion or in his supporting affirmation.

6.  Moreover, the applicant has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal. The applicant did not provide any discernible ground in the Notice of Motion for his intended appeal from the judgment of this court, and merely complained that this court dismissed his appeal against the Judge’s decision and that he would be harmed by his creditor and gangsters upon his return to his home country. He merely alleged that the Director of Immigration had disregarded his human rights and he urged this court to give him a chance to seek justice and to grant leave to him to go to the Court of Final Appeal.

7.  The applicant also alleged in his supporting affirmation that the Judge’s decision was reached unfairly without allowing him to clarify his case and the situation of his home country. This appears to be merely a variation of his previous complaint that the judge failed to take into account his low education level which we have discussed in our judgment at paragraph 17.

8.  Pursuant to the directions of the Registrar of Civil Appeals given on 15 September 2022, the applicant should lodge his written submissions on or before 29 September 2022. He failed to do so. The Registrar further directed that unless the applicant lodges his written submissions on or before the aforesaid deadline, he will be deemed to have abandoned his right to rely on written submissions and the matter will be considered by the Court of Appeal based on available materials and unless otherwise directed, the Notice of Motion shall be determined on paper only without an oral hearing. As we consider it appropriate, this Notice of Motion is determined on paper without an oral hearing.

9.  Section 22(1)(b) of the HKCFAO provides that leave to appeal to the Court of Final Appeal may be granted 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 Court of Final Appeal for decision.

10.  Having regard to the judgment of this court, the applicant’s intended appeal has no merit at all. No question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 15 September 2022 is dismissed.