RE NGUYEN THI THU

CACV 25/2022, [2023] HKCA 1146

On Appeal From [2022] HKCFI 25

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 25 OF 2022

(ON APPEAL FROM HCAL NO 95 OF 2019)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  This court handed down judgment on 10 February 2023 ([2023] HKCA 133) dismissing the applicant’s appeal against an order of DHCJ To given on 5 January 2022 in which he refused the applicant’s application for leave to apply for judicial review in respect of her non‑refoulement claim.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 15 June 2023, the applicant filed a Notice of Motion in English for leave to appeal against this court’s judgment to the Court of Final Appeal. However, it was out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) (Cap. 484) stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from. The deadline for filing the Notice of Motion expired on 10 March 2023.

4.  Under sections 24(5) and 24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period. In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5.  The Registrar of Civil Appeals directed the applicant to lodge her written submissions on or before 29 June 2023. The applicant failed to lodge any written submissions as directed. As it is appropriate to do so, the Notice of Motion is determined on paper without an oral hearing.

6.  In the present case, the applicant was late by nearly 14 weeks, which is substantial. She did not provide any explanation for the delay in her supporting affirmation.

7.  Moreover, she has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal. She stated the following grounds in her Notice of Motion and affirmation:

(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, she will be tortured, beaten or even killed 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 decision of the Court of Appeal has been reached unfairly without allowing the applicant an opportunity to clarify her case and situation in her country.

8.  Section 22(1)(b) of the HKCFAO 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.

9.  The applicant’s ground (1) is a general assertion. Her grounds (2) – (4) are just bare assertions. In relation to ground (5), she had consented to have her appeal dealt with on paper without an oral hearing. She was also directed to lodge written submissions to support her appeal, but she did not do so. Under these circumstances, there is no basis for her to challenge the fairness of the decision of this court for not allowing her the opportunity to clarify her case and situation. She failed to identify any errors in our judgment. 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 granting leave under the “or otherwise” limb under section 22(1)(b).

11.  By reason of the above, we will dismiss the Notice of Motion filed on 15 June 2023.