NGUYEN KHANH DUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 412/2020

[2022] HKCA 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 412 OF 2020

(ON APPEAL FROM HCAL NO 92 OF 2018)

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J U D G M E N T

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Hon Kwan Ag CJHC (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 (Kwan VP, Barma JA and G Lam JA) handed down on 7 January 2022 ([2022] HKCA 5). The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge Bruno Chan dated 9 December 2019 ([2019] HKCFI 2573) refusing to grant leave for extension of time to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 20 January 2022 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant has not lodged any written submission as directed. The time for compliance with the said directions has expired. Having considered the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Vietnam. He surrendered to the Immigration Department on 26 November 2014 upon illegally entering Hong Kong two days prior. He lodged his non-refoulement claim on the same day. His claim is on the basis he would be harmed or killed by the government for refusing to join the military service.

4.  The applicant took out a summons in the court below to seek leave to challenge the decision of the judge. Due to the General Adjourned Period caused by the Covid-19 pandemic, the judge granted the applicant an extension of time to file the Notice of Appeal on 20 August 2020[1].

5.  The Notice of Appeal was ultimately dismissed by the Court of Appeal on 7 January 2022.

Grounds of appeal

6.  In the Notice of Motion, the applicant stated the following:

“1. The learned Judges were wrong as a matter of law for not having applied principles of irrationality to the decision made by the Director of Immigration refusing my application for Leave for Judicial Review and the Appeal; and

2. The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.”

7.  As he has failed to lodge written submissions, we shall determine this application on the materials before us.

Analysis and disposition

8.  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 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.  In the present application, the applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his appeal. Nor has he identified 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).

10.  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 20 January 2022.