RE PHAM VAN TUNG

CACV 212/2021

[2022] HKCA 927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 212 OF 2021

(ON APPEAL FROM HCAL 152 OF 2021)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  On 14 April 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Au and Lam JJA)  judgment of 17 February 2022 (“the Judgment”)  ([2022] HKCA 241). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge P Li (“the Deputy Judge”)  dated 19 April 2021, by which the Deputy Judge refused his application for leave to apply for judicial review ([2021] HKCFI 1016).

2.  The facts and issues in the appeal, as well as this 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 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  In the present case, the deadline for the applicant to seek leave to appeal against the Judgment fell on 17 March 2022.  Due to the closure of the High Court Registry during the General Adjournment Period (arising from the COVID-19 Pandemic)  from 7 March 2022 up to 11 April 2022, the period was automatically extended to 12 April 2022. Accordingly, the applicant was late for two days in taking out his application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant repeated that his life would be seriously threatened or be killed because of creditors and gangsters in Vietnam were different from those in Hong Kong and most of them were cruel and violent.  He further asserted that the Immigration Department did not consider his human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights and ordered his deportation. He also requested that he be granted a chance to stay in Hong Kong for protection and to seek asylum.

7.  In his supporting affirmation filed on 14 April 2022, the applicant asserted that the Judgment was reached unfairly without allowing him an opportunity to clarify his case and situation in his country. He repeated that if returned to Vietnam, he would face a risk of being killed or tortured by his creditor.  He also asserted that he could not internally relocate to another city in Vietnam given he would face many difficulties and obstacles in the new location with his poor health, and that it might be possible that his enemies would locate him in his new residence.

8.  Pursuant to Practice Direction 2.1, the applicant lodged written submissions on 26 April 2022.  In those submissions, he repeated the factual background of his non-refoulement claim and those submissions made in his Notice of Motion and supporting affirmation.  He also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  had acted in a procedurally unfair manner without properly assessing his credibility.  He also referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  It is noted that his submissions are all general propositions and the applicant failed to show specifically how they are relevant to his case.

9.  Although the applicant’s delay of two days is not substantial, we are of the view that his intended appeal has no merit at all.  The matters raised in his Notice of Motion and supporting affirmation are all general and bare allegations without any specific particulars or explanation.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  His allegations are all directed to the Director of Immigration and the Board and he failed to identify any specific error in the Judgment with sufficient particulars.  He already had ample opportunities to present and clarify his case before this Court in his appeal.

10.  Further, as stated at [16] of the Judgment, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

11.  In any event, taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

13.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal. Accordingly, the Notice of Motion filed on 14 April 2022 is dismissed.