RE NGUYEN THI CHUNG

CAMP 416/2021

[2022] HKCA 985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 416 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2688 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  On 26 November 2021, this Court handed down our judgment ([2021] HKCA 1755)  refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Lung given on 17 May 2021 which refused to give her leave to apply for judicial review.  

2.  On 13 May 2022, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  She also put in a written submission to support her application.

3.  The applicant requested for an oral hearing in her written submission.  Having considered the applicant’s notice of motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim has been set out in our judgment.  We will not repeat them.

5.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.  Section 24(5)  of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s notice of motion is late by more than four months, which is serious delay.  The applicant stated in her affirmation that she had no money to seek advice on the procedure and could not approach the free legal advice centre in the High Court to find out the appeal.  She also said she did not receive any letter from the court and only learnt about the court’s decision from the Immigration Officers when she went at the end of April 2022 to extend her stay.  The court file shows that on 26 November 2021, the judgment and the sealed order were mailed to the address provided by the applicant in the summons dated 30 September 2021, which is the same as the address stated in the notice of motion.  The documents had not been returned by the Post Office.  In these circumstances, we do not find the applicant has satisfactorily explained her delay.    

7.  We turn next to consider the merits of the intended appeal.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance 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.

8.  The notice of motion stated the following as the grounds of appeal:

(1)  The judges were wrong as a matter of law for not having applied the principles of irrationality to the decision of the Director of Immigration; and

(2)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration.

9.  The written submission, after setting out the background and procedural history of the case, quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and decision on Wednesbury unreasonableness.  It also stated that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim, the Adjudicator of the Torture Claim Appeals Board acted in a procedurally unfair manner without properly assessing the credibility of the applicant. 

10.  We are of the view that the matters set out in the notice of motion, affirmation and written submission do not afford any basis for granting leave to appeal.  Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any question of great general or public importance. Further, they are mere assertions unsupported by particulars and it has not been shown how the legal propositions in the written submissions relate to the applicant’s case.  

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.