Nguyen Thi Thuy and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 270/2020

[2022] HKCA 1563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2020

(ON APPEAL FROM HCAL NO 1764 OF 2018)

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Before:  Hon Kwan VP, Au JA and G Lam JA in Court

Date of Written Submissions:  13 June 2022

Date of Judgment:  28 October 2022

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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 1^st and 2^nd applicants’ application by Notice of Motion filed on 31 May 2022 for leave to appeal to the Court of Final Appeal against the against the judgment of the Court of Appeal (Kwan VP, Au JA and G Lam JA) handed down on 3 December 2021 ([2021] HKCA 1794). The Court of Appeal rejected the 1^st and 2^nd applicants’ appeal against the decision of Deputy High Court Judge K W Lung on 7 July 2020 ([2020] HKCFI 1366) refusing to grant leave for these applicants to apply for judicial review concerning their non-refoulement claims.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 31 May 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The 1^st and 2^nd applicants lodged their written submissions on 13 June 2022. Having considered their written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

3.In the Notice of Motion filed on 31 May 2022, the 1^st and 2^nd applicants stated the following grounds of appeal:

(1)  The judges were wrong as a matter of law for not applying the principle of irrationality to the decision made by the Director of Immigration (“the Director”) in refusing the application for judicial review and in 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.

4.Their further contentions in the written submissions may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(2)  The Board acted in a procedurally unfair manner without properly assessing their credibility.

Analysis and disposition

5.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

6.Section 22(1)(b) of the Ordinance 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.

7.The 1^st and 2^nd applicants were late for 5 months in filing their Notice of Motion. They explained in their affirmation they were late because they had applied for legal aid and their applications were rejected. In fact, their previous applications for legal aid had been rejected on 30 March 2021. They applied for legal aid again in December 2021 and the applications were again rejected on 22 February 2022. No explanation was given for the further delay after their failure to obtain legal aid. Under these circumstances, their explanation for the delay is not justifiable.

8.In any event, the applicants have not provided any particulars or evidence to support their grounds and contentions. They failed to show that the Court of Appeal was wrong in dismissing their appeal. Furthermore, they 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).

9.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 31 May 2022.

The 1^st and 2^nd Applicants, acting in person