RE DANG THI MINH THU

CAMP 335/2022, [2024] HKCA 421

On Appeal From [2021] HKCFI 3399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 335 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 120 OF 2019)

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DECISION

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Hon Cheung JA (giving the Decision of the Court)  :

1.  On 25 April 2023, this Court handed down decision ([2023] HKCA 587)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Bruno Chan given on 12 November 2021 refusing her application for leave to apply for judicial review in respect of her non-refoulement claim.

2.  On 19 May 2023, the applicant filed a notice of motion and supporting affirmation applying for leave to appeal this Court’s decision to the Court of Final Appeal.  The applicant has also lodged a written submission on 2 June 2023.

3.  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 have been set out in our decision.  We will not repeat them.

5.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (Cap. 484)  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.

6.  In summary the applicant stated the following in the notice of motion :

1)  The Judges were wrong for not applying the principle of procedural unfairness to the Director’s decision; and

2)  The Judges were wrong for not applying the principle of irrationality to the Director’s decision.

7.  In summary the applicant stated the following in the supporting affirmation :

1)  The applicant was late submitting’ this form’ [which we understood to be her notice of appeal] was because all along she did not receive the High Court’s decision and had to go to court to search court file to get it;

2)  The applicant did not have concrete legal advice on the procedure to appeal;

3)  A good ground of appeal was not necessarily considered at the stage of her application for leave for judicial review; and

4)  The merits of this ground of appeal constitute sufficient reason justification for the Court to allow appeal out of time.

8.  In the applicant’s written submissions, she first stated some background information from paragraphs [1] to [9]. She then stated general non-refoulement legal principles without specifying how they relate to the particulars of her case.  They include the following :

1)  It is the applicant’s fundamental right not to be subjected to torture: ST v Director of Immigration [2014] 4 HKLRD 277;

2)  The decision has a significant effect on the applicant’s torture claim;

3)  High standards of fairness is required for determining torture claims: Secretary for Security v Prabakar [2005] 1 HKLRD 289;

4)  Appropriate standard of fairness depends on an examination of all aspects relating to the decision in question: R v Home Secretary ex parte Doody [1994] 1 AC 531 at 560D-G;

5)  The applicant’s life and limb are in jeopardy and high standard of fairness must be demanded;

6)  The Court should not usurp the function of the Secretary;

7)  The Court should determine non-refoulement cases with anxious scrutiny and rigorous examination: R v Home Secretary, Ex-Parte Bugdaycay [1987] 1 AC 514 at 531E-G;

8)  The applicant should be given every reasonable opportunity to establish his claim;

9)  The Adjudicator did not properly assess the applicant’s credibility;

10)  The Court has the power to interfere in a public body’s decision if it is Wednesbury unreasonable; and

11)  The modified Wednesbury test is that of beyond the range of responses open to reasonable decision-maker: R v Ministry of Defense ex.p. Smith.

9.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

10.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met, we, accordingly, dismiss the notice of motion.