Bui Thi Phuong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 570/2020

[2021] HKCA 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 570 OF 2020

(ON APPEAL FROM HCAL NO 959 OF 2018)

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Before: Hon Kwan VP, Cheung JA and Chu JA in Court

Date of Judgment: 23 August 2021

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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, Cheung JA and Chu JA) handed down on 10 May 2021 ([2021] HKCA 643). The Court of Appeal rejected her appeal against the decision of Deputy High Court Judge C P Pang dated 15 October 2020 ([2020] HKCFI 2637) refusing to grant leave for the applicant to seek judicial review concerning her non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 25 May 2021 that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance of the direction for the applicant to lodge written submissions or the expiry of the time for complying with the direction.  The applicant failed to lodge written submissions as directed.  Having considered the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of Vietnam.  She was previously repatriated to her home country from Hong Kong back in 2012.  She entered Hong Kong illegally again on 16 October 2014.  She lodged a non-refoulement claim on 2 October 2015 on the basis that if she returns to Vietnam she will be harmed or killed by her creditor and his people as she is unable to repay the debt.

4.Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 7 July 2016 and 5 March 2017.  Her appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board(“the Board”) on 22 March 2018.

5.She filed a Form 86 on 28 May 2018 to seek leave to apply for judicial review against the decision of the Board.  DHCJ Pang dismissed the leave application on 15 October 2020.

6.On 23 October 2020, the applicant filed a notice of appeal against the judge’s decision.  The appeal was dealt with by the Court of Appeal on paper as the applicant consented to the disposal of her appeal on paper without an oral hearing.  The appeal was dismissed by the Court of Appeal on 10 May 2021.  The applicant filed a Notice of Motion on 21 May 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7.The applicant stated the following grounds of appeal in the Notice of Motion:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director in refusing her application for leave for judicial review and the appeal.

(2)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.

Analysis and disposition

8.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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. 

9.The applicant’s grounds are just bare assertions without particulars or elaboration.  Furthermore, it has been well established that the decisions of the Director are not susceptible to judicial review once an appeal to the board is pursued by a claimant as the decision by the Board has superseded the decision of the immigration officer and represents the final decision on the claim at the end of its processing: Re Moshsin Ali [2018] HKCA 549 at §45.

10.Moreover, the applicant has failed to identify 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). 

11.We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 21 May 2021.

The Applicant (Appellant), acting in person