RE LUONG THI DAN

CAMP 172/2019

[2021] HKCA 42

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 172 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1013 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 11 September 2020 ([2020] HKCA 740), this Court (Yeung VP and Pang JA) dismissed the applicant’s application for an extension of time to appeal against the decision given by Campbell - Moffat J (“the Judge”) on 11 December 2018 in HCAL 1013/2017 refusing to grant her leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 13 September 2017 dismissing her petition/appeal from the decisions of the Director of Immigration (“Director”) given on 14 January 2016 and 4 January 2017 rejecting her non-refoulement claim.

2.  By a notice of motion dated 16 September 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

(1)  The learned Judges were wrong as a matter of law for not having applied the principles of irrationality to the decision made by the Director in refusing her application for leave to apply for judicial review and to appeal out of time.

(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.

3.  In compliance with the directions made by the Registrar of Civil Appeals on 18 September 2020, the applicant lodged her written submissions on 28 September 2020.

4.  In the applicant’s written submissions, she firstly set out the background of her case and then advanced the following grounds of appeal:

(1)  The Judge’s decision was wrong.  There was procedural unfairness for lack of legal and language assistance and it was difficult for her to seek for such assistance. 

(2)  She required further legal advice as the appeal against the Judge’s decision was not the same as the appeal against the Board’s decision.

(3)  Although she had some help for her language problem, such assistance was sparing and inconsistent and she did not have the best understanding of the proceedings.

(4)  The Judge found no error of law in the Board’s decision but it was the applicant’s submission that the Board only drew inferences from the information which was negative to her case rather than taking a wider view for the relevant Country of origin information and it was not a balanced view.

(5)  By taking the Director’s decision, the court failed to even acknowledge the presence of state acquiescence in this case. This led to unfair outcome of rejecting her claim.  The Vietnamese army holds central power in Vietnam and it would not yield to its people.

(6)  The Director and the court have failed to examine or give sufficient weight to the extended concept of state acquiescence.  The inaction of the government officials could effectively hold the state liable when they failed to protect its citizens against risk of torture.

(7)  She urged the Court of Appeal to set aside the Judge’s decision and grant her leave to apply for judicial review against the Board’s decision on a higher standard of fairness appropriate to someone in her position.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  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.

7.  The grounds of appeal set out in the notice of motion were general assertions without particulars and elaborations.  Without raising any discernible or arguable ground for disturbing our judgment, the intended appeal is bound to fail.  Further, as duly set out at [25] to [28] of our judgment, we endorsed the Board’s decision that the applicant was not a genuine asylum seeker and she came to Hong Kong for family reunion rather than seeking non-refoulement protection and her complaints against the decisions of the Director, the Board and the Judge were no more her mere disagreement with the decisions.  As such, we found no merit in any of the grounds as set out in the written submissions.

8.  For the reasons that we gave in our judgment of 11 September 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and her written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss her notice of motion.