RE BUI QUY TAN

CAMP 105/2021

[2021] HKCA 1797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 105 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1853 OF 2018)

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J U D G M E N T

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

1.  On 30 August 2021, this court handed down our judgment ([2021] HKCA 1252) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Lung given on 27 May 2020 refusing to extend the time for him to apply for judicial review in respect of his non‑refoulement claim.

2.  On 19 October 2021, the applicant filed a Notice of Motion together with an affirmation applying for leave to appeal this court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission.

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 judgment.  We will not repeat them.

5.  The applicant’s Notice of Motion is out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance 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 29 September 2021.

6.  Under sections 24(5) and 24(6) of the Hong Kong Court of Final Appeal Ordinance, 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. 

7.  In the present case, the applicant’s Notice of Motion is late by more than 2 weeks, which is not insubstantial.  The applicant explained in his affirmation that he did not understand English, was unaware of the time limit for making the application and required the assistance of his friends to prepare the appeal.

8.  As to the merits of the intended appeal, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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 Notice of Motion stated that: (1) the outcome of the application was unsatisfactory; (2) if the applicant returns to Vietnam, his life will be seriously threatened as his creditors are cruel and violent, have no regard for the law and will readily kill people out of anger; (3) the applicant would like to postpone the deportation as he has not yet agreed with his creditor on a repayment plan; and (4) the Director of Immigration did not consider the applicant’s human rights under the Basic Law, the Hong Kong Bill of Rights Ordinance, Cap. 383 as well as the International Covenant on Economic, Social and Cultural Rights.

10.  The written submission: (1) gave an outline of the applicant’s claim and the procedural history; (2) quoted extensively from cases dealing with the high standard of fairness and Wednesbury unreasonableness; and (3) argued that high standard of fairness is required because the decision has the effect of finally disposing of the applicant’s claim making him liable to be repatriated, and that the Torture Claims Appeal Board had acted unfairly without properly assessing the applicant’s credibility.

11.  What was put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, they all relate to the applicant’s claim and do not involve any question of great general or public importance, as required by section 22(1)(b) of the Ordinance. As to the complaints made against the Director and the Board, they are in any event general assertions without supporting particulars or details.       

12.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

13.  As the intended appeal has no prospect of success, it would be futile to extend the time for the applicant to appeal.  Accordingly, we refuse to extend the time for the applicant to appeal to the Court of Final Appeal and dismiss the Notice of Motion.