TRINH THI LY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 535/2021

[2023] HKCA 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 535 OF 2021

(ON APPEAL FROM HCAL NO 1270 OF 2018)

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J U D G M E N T

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Hon Kwan VP (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 handed down on 27 May 2022 ([2022] HKCA 738). The Court of Appeal rejected her appeal against the decision of Deputy High Court Judge K W Lung dated 22 November 2021 ([2021] HKCFI 3447) refusing to grant leave for the applicant to apply for judicial review concerning her non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 27 September 2022 that the applicant shall lodge written submissions on or before 11 October 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 14 December 2014. She surrendered to the Immigration Department and lodged a non-refoulement claim on 16 December 2014 on the basis that she would be harmed or killed by her creditors.

Grounds of appeal

4.  The applicant stated her grounds of appeal in the Notice of Motion and affirmation filed on 27 September 2022 which may be summarised as follows:

(1)  It was unsatisfactory for the Court of Appeal to rule that the applicant had no chance of success in reviewing the decision of the Torture Claims Appeal Board.

(2)  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.

(3)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles. The nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.

(4)  The Director of Immigration 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.

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

Analysis and disposition

5.  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).

6.  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.

7.  The applicant was late for more than 3 months in filing the Notice of Motion. As she did not provide any explanation for the delay in her affirmation, there is no good ground for the court to grant extension of time to file her Notice of Motion.

8.  In any event, the applicant’s grounds are not supported by evidence. She has not pointed out any error in the Court of Appeal’s decision in dismissing her appeal, nor did she 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).

9.  For the above reasons, we dismiss the Notice of Motion filed on 27 September 2022.