NGUYEN THI TUYET LE v. TORTURE CLAIMS APPEAL BOARD

CAMP 196/2021

[2022] HKCA 1678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 196 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 122 OF 2019)

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J U D G M E N T

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Hon Kwan VP (handing down 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 and Au JA) handed down on 31 January 2022 ([2022] HKCA 115). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan dated 23 September 2020 refusing to grant extension of time for the applicant to apply for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning her non-refoulement claim[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 12 May 2022 that the applicant shall lodge written submissions on or before 26 May 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Vietnam. She entered Hong Kong illegally on 31 August 2015. She surrendered to the Immigration Department on 1 September 2015 and raised a non-refoulement claim on the basis that if she should return to Vietnam she would be harmed or killed by her creditors for failing to repay her loans.

4.  She took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 21 May 2021[2].

5.  On 27 May 2021, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 31 January 2022 as the applicant failed to show any prospect of success in her intended appeal.

Grounds of appeal

6.  In the Notice of Motion and affirmation filed on 12 May 2022, the applicant stated the following grounds of appeal:

(1)  If the applicant returns to Vietnam, her life will be seriously threatened because the creditors and gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent. They disregard the law and are willing to kill people.

(2)  The Director of Immigration (“the Director”) suggested that the applicant could relocate to another place but it is completely unfeasible and it is possible for the creditor and gangster to find out the applicant’s new residence.

(3)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights.

(4)  The court’s decision was reached unfairly without allowing the applicant an opportunity to clarify her case and the situation in her country.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), 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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

8.  Section 22(1)(b) of the Ordinance 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.  The applicant was late for nearly two and a half months in filing her Notice of Motion. She stated in her affirmation that she believed the merits of her grounds of appeal constitute sufficient justification for the court to exercise its discretion in allowing the appeal out of time, without giving any reasons for her substantial delay. Under these circumstances, there is no good reason for the Court to grant an extension of time for the applicant to file her Notice of Motion.

10.  In any event, the applicant’s grounds alleged against the Director and the court were not raised in the leave application before the Court of First Instance or in her previous application before the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings. In any event, the Court of First Instance is entitled to determine the leave application without a hearing when the applicant has not requested for a hearing pursuant to Order 53 rule 3(3) of the Rules of the High Court and the Court of Appeal is also entitled to determine the application for leave to appeal without a hearing under Order 59 rule 2A(5)(a). The applicant does not have any reasonably arguable ground to demonstrate that the Court of Appeal was wrong in dismissing her application.

11.  Moreover, she has failed to identify 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).

12.  For all the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 12 May 2022.