Re Nguyen Van Khanh

CAMP 297/2022, [2024] HKCA 398

On Appeal From [2021] HKCFI 3906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 297 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1354 OF 2021)

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Decision

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Hon Cheung JA (giving the Decision of the Court) :

1.On 15 September 2023, this Court (Cheung and Yuen JJA) handed down the decision ([2023] HKCA 1040) dismissing the applicant’s application to extend time to appeal the order of Deputy High Court Judge Bruno Chan given on 30 December 2021 refusing his application to extend time for leave to apply for judicial review in respect of his non‑refoulement claim.

2.On 20 September 2023, the applicant filed a notice of motion applying for leave to appeal this Court’s judgment to the Court of Final Appeal.  Pursuant to the directions of the Registrar of Civil Appeals also dated 20 September 2023, the applicant was to lodge and serve on or before 4 October 2023 written submissions failing which she will be deemed to have abandoned her right to rely on written submissions and the matter will be considered by this Court based on the available materials.  The applicant has not lodged or served his written submission by the stipulated deadline.

3.On 7 February 2024, the Appeals Registry received a letter from the Immigration Department enclosing a Chinese letter dated 2 February 2024 which was purportedly sent by the applicant to the High Court indicating that his problems in Vietnam have been solved.  The letter further stated that it is now safe for him to return to Vietnam and he would like to withdraw his judicial review application and return to Vietnam.

4.Having considered the applicant’s notice of motion, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

5.The background to this case and the applicant’s claim have been set out in our decision.  We will not repeat them.

6.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that leave to appeal to the Court of Final Appeal may be granted 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.

7.In summary the applicant stated the following in the notice of motion:

1)  It was unsatisfactory that the Court of Appeal ruled that he had no chance of success.

2)  If he is refouled to Vietnam he will be threatened or become dead because the gangsters in Vietnam are different to those in Hong Kong most of them being cruel and violent.

3)  He cannot live in another location in Vietnam because there will be many difficulties and obstacle.  His health is not good.  There is no guarantee that he can adapt to the new place.

4)  There is a nationwide social network of gangsters with corrupt people in the government.  The gangsters will probably find him.

5)  The problem with his appeal is that the Immigration Department did not consider his human rights under the Basic Law.

6)  He asks the Court of Appeal for a chance to seek justice.

8.We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

9.Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

10.As the statutory requirements for giving leave to appeal are not met, we, accordingly, dismiss the notice of motion.

11.We would also, according to the applicant’s request for dismissal of appeal, dismiss the applicant’s notice of motion.