Re Le Anh Hong

CACV 309/2020

[2021] HKCA 1692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 309 OF 2020

(ON APPEAL FROM HCAL NO 1888 OF 2018)

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Before:  Hon Cheung, Au and Chow JJA in Court

Date of Judgment:  12 November 2021

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J U D G M E N T

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

1.On 23 August 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Cheung, Au and Chow JJA)  judgment of 10 August 2021 (“the Judgment”)  ([2021] HKCA 1160).  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Kung dated 15 July 2020 refusing to grant to the applicant leave to apply for judicial review ([2020] HKCFI 1548).

2.The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.In her Notice of Motion, the applicant asserted that the Judges were wrong as a matter of law for not having applied the principles of irrationality and the principle of procedural unfairness to the decision made by the Director of Immigration (“the Director”)  and refusing her application for leave to apply for judicial review and the appeal.

5.The applicant lodged her written submissions on 6 September 2021.  In those submissions the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 for the proposition that high standards of fairness were required in the determination of a torture claim.  She submitted that the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  acted in a procedurally unfair manner without properly assessing her credibility.  She referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  However, it is noted that these are all general propositions and she has not shown specifically how they are relevant to her case.

6.In our view, the applicant’s application is devoid of merits.  None of the matters raised in her Notice of Motion or written submissions identified any specific errors in the Judgment.  They were therefore not viable grounds.

7.Her application for leave to apply for judicial review concerned the Board’s decision rather than the Director’s decision in refusing her non-refoulement claim.  In any event, the decision of the Director was not a decision that, within this administrative structure, was susceptible to judicial review once an appeal to the Board was pursued by a claimant: Re Moshsin Ali [2018] HKCA 549 at [45].  Therefore, her assertions that the Judges failed to apply the principle of irrationality and the principle of procedural unfairness to the decision of the Director were wholly misplaced and without merit.

8.Further, the matters raised in her written submissions lodged on 6 September 2021 were essentially those previously advanced by the applicant but rejected by us at [20] to [21] of the Judgment.  She failed to point out any specific error in the Judgment.

9.Accordingly, the applicant failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.By reason of the above, the Notice of Motion filed on 23 August 2021 is dismissed.

The applicant acting in person