PHAM VAN LUAN v. TORTURE CLAIMS APPEAL BOARD

CAMP 376 /2021

[2022] HKCA 1203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 376 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1446 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 (Kwan VP and Au JA) handed down on 30 March 2022 ([2022] HKCA 438). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 30 April 2021 ([2021] HKCFI 1201) refusing to grant extension of time for the applicant to apply for leave to seek 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 22 April 2022 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant did not lodge written submissions as directed.  Having considered the papers of this case, we think it is appropriate to determine this application on paper.

3.  The applicant is a national of Vietnam.  He alleged that he entered Hong Kong illegally on 27 April 2016 and was arrested by the Immigration Department the following day.  Upon his arrest, he lodged a non-refoulement claim on the basis that he would be harmed or killed by a money-lender as he is unable to repay the debt.  The background of the applicant and the procedural history of the case before the Director of Immigration and the Torture Claims Appeal Board have been summarised by DHCJ Bruno Chan at §§1 to 8 of his decision dated 30 April 2021.

4.  The applicant 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 2 September 2021^[1].

5.  The applicant renewed his application to the Court of Appeal on 8 September 2021.  The application was dismissed by the Court of Appeal on 30 March 2022 as there is no prospect of success in the intended appeal.^[2]

Grounds of appeal

6.  In the Notice of Motion, the applicant repeated various grounds previously submitted before the Court of Appeal, including those summarised at §10 in our judgment.  He further alleged in the present application that his health is not good, hence he may be disadvantaged in the labour market and taking care of his three small children would cause hardship if he is returned to Vietnam.  In his supporting affirmation, he complained that the court’s decision was reached without allowing him an opportunity to clarify his case and the situation in his country.

Analysis and disposition

7.  Under Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), it 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.

8.  The present application is devoid of merits as the bare assertions made by the applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application.  Besides, he has not 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).

9.  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 22 April 2022.