RE NGUYEN THI DUNG

CAMP 297/2021

[2022] HKCA 939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 297 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1441 OF 2018)

________________________

________________________

________________________

D E C I S I O N

________________________

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

1.  On 31 December 2021, this Court handed down judgment ([2021] HKCA 2017)  dismissing the applicant’s application to extend time to appeal an order of Judge CP Pang given on 30 March 2021 who refused her application for leave to apply for judicial review in respect of her non-refoulement claim.

2.  On 13 January 2022, the applicant filed a notice of motion applying for leave to appeal this Court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 26 January 2022.

3.  Having considered the applicant’s notice of motion 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 at [6] in our judgment.  We shall not repeat them here.

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.  The applicant’s grounds of appeal stated in the notice of motion can be summarised as follows :

1)  Dissatisfaction with the decision of this Court.

2)  The applicant’s life would be in danger if she is returned to Vietnam.

3)  The Immigration Department was wrong in reaching its decision in disregarding her human rights.

7.  As for the applicant’s written submissions, it can be summarised as follows :

1)  High standards of fairness are required on the part of decision maker in the determination of torture claim as life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved.

2)  The adjudicator acted in a procedurally unfair manner in dealing with the applicants’ applications without properly assessing the credibility of the applicants.

8.  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.

9.  We further do not see any basis for the ‘or otherwise’ limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, accordingly, we dismiss the notice of motion dated 13 January 2022.