Phung Thi Tuoi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CACV 276/2022, [2023] HKCA 1206

On appeal from [2022] HKCFI 2060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 276 OF 2022

(ON APPEAL FROM HCAL NO 1028 OF 2019)

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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 an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 1 February 2023 ([2023] HKCA 96). The Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge To dated 8 July 2022 refusing to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that unless the applicant lodges written submissions on or before 28 April 2023, she will be deemed to have abandoned her right to rely on written submissions and the matter will be considered by the Court of Appeal based on the available materials. 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.

Grounds of appeal

3.The applicant stated her grounds of appeal in her Notice of Motion filed on 14 April 2023 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 Board’s decision;

(2)  If she returns to Vietnam, she will die or her life will be seriously threatened because the Vietnamese police are cruel and violent. They disregard the law and are willing to kill people to satisfy their anger and ferocity;

(3)  The suggestion of the Director of Immigration that the applicant can avoid the police pursuit by relocation is completely unfeasible. She will face many difficulties and obstacles in that respect;

(4)  Vietnam is a one-party state with a unified ideology. The applicant is a reactionary so she will be chased and arrested by the police as well as the Vietnamese government wherever she goes in Vietnam;

(5)  The Immigration Department did not consider her human rights under the Basic Law, 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.

4.In her supporting affirmation, she further contended that the Court of Appeal’s decision was reached unfairly without allowing her an opportunity to clarify her case and the situation in her country.

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 applicant was late by nearly one and a half months in filing the Notice of Motion and she did not provide any explanation for the substantial delay. Under these circumstances, there is no good ground for the court to grant extension of time for the applicant to file the Notice of Motion.

8.In any event, the applicant’s grounds are just bare assertions without particulars or evidence in support. The applicant had the opportunity to lodge written submissions to the Court of Appeal to put forward her arguments and to provide clarification and elaboration of her case in the appeal. Moreover, she 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.We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 14 April 2023.

The Applicant (Appellant), acting in person