Nguyen Ngoc Thiem and Others v. Torture Claims Appeal Board

CACV 511/2021

[2022] HKCA 1376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 511 OF 2021

(ON APPEAL FROM HCAL NO 2019 OF 2018)

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J U D G M E N T

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

1.On 3 August 2022, this Court gave its judgment (“the CA Judgment”) dismissing the Applicants’ appeal against the order of Deputy High Court Judge Bruno Chan dated 11 November 2021 (“the Order”) refusing to grant them leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 21 September 2018, whereby the Board dismissed the Applicants’ appeal against the decisions of the Director of Immigration (“the Director”) dated 23 August 2016 and 9 October 2017.

2.The Applicants now apply by Notice of Motion dated 15 August 2022 for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the Applicants state, inter alia, as follows:

(1)  It is unsatisfactory that the Court of Appeal ruled that they had no chance of success in reviewing the Board’s decision.

(2)  The evidence that they gave to the Board and the Director was true. The Board and the Director failed to investigate or take any measures to prove that their evidence was not true. The Board and the Director were subjective in their judgment in evaluating the Applicants’ evidence.

(3)  The Immigration Department failed to consider their human rights under various instruments including the Basic Law and the ICCPR.

(4)  The 3^rd and 4^th Applicants are disabled people and are unable to control their “behaviour capacity”. They are innocent people but implicated by the plight of their parents.

3.The Applicants have failed to lodge written submissions in support of their application, contrary to the directions given by the Registrar of Civil Appeals dated 15 August 2022.

4.Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter 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.

5.No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. The complaints against the decisions of the Board and Director mentioned in the Notice of Motion are bare assertions and have no substance. We are satisfied that the intended appeal has no merits and no reasonable prospect of success. There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

6.Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

7.For the avoidance of doubt, we shall treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering the 3^rd and 4^th Applicants’ application a nullity.

The Applicants, acting in person