Dang Van Tuan v. Torture Claims Appeal Board

CAMP 103/2022

[2023] HKCA 291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 103 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 516 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down 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 and Chu JA) handed down on 11 August 2022 ([2022] HKCA 1143). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 23 July 2020 refusing to grant leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 21 September 2022 that the applicant shall lodge written submissions on or before 5 October 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of Vietnam. He entered Hong Kong on 28 November 2013 as a visitor and subsequently overstayed. He surrendered to the Immigration Department on 11 December 2013. On 12 April 2014, he raised a non-refoulement claim on the basis that he will be harmed or killed by his creditor if he returns to Vietnam because he fails to repay the loan.

4.He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 25 March 2021[2].

5.On 13 April 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 11 August 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.The applicant stated his grounds of appeal in the Notice of Motion and affirmation filed on 21 September 2022, which may be summarised as follows:

(1)  It was unsatisfactory for the Court of Appeal to rule that the applicant had no chance of success in reviewing the decision of the Torture Claims Appeal Board.

(2)  If the applicant returns to Vietnam, his life will be seriously threatened because the creditors and gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent. They disregard the law and are willing to kill people.

(3)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles. The nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.

(4)  The Director of Immigration did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.

(5)  The court’s decision was reached unfairly without allowing the applicant an opportunity to clarify his case and the situation in his country.

Analysis and disposition

7.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).

8.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.

9.The applicant was late for nearly 2 weeks in filing his Notice of Motion. He did not provide any explanation for the delay. Therefore, there is no good ground for the court to grant extension of time for him to file the Notice of Motion.

10.In any event, the applicant’s grounds have already been dealt with by the Court of Appeal and he failed to demonstrate that the Court of Appeal was wrong in dismissing his application. Besides, he 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.For these reasons, the Notice of Motion filed on 21 September 2022 for leave to appeal to the Court of Final Appeal out of time is dismissed.

The Applicant, acting in person