Re Pham Van Tuan

CACV 211/2022, [2024] HKCA 951

On appeal from [2022] HKCFI 1300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 211 OF 2022

(ON APPEAL FROM HCAL 168 OF 2022)

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J U D G M E N T

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

1.On 30 December 2022, this court (Chu VP and Barma JA)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung given on 13 May 2022 refusing leave to the applicant to apply for judicial review out of time. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 3 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 25 July 2017 rejecting the applicant’s non-refoulement claim.

2.The facts and issues in the applicant’s application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.The applicant subsequently applied, by a Notice of Motion filed out of time on 21 February 2023, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant contended that this Court was wrong as a matter of law for (i)  “not having applied the principles of irrationality to the decision made by the Director of Immigration”; and (ii)  “not having applied the principle of procedural unfairness to the decision of the Director”.

4.In his written submissions lodged on 7 March 2023, the applicant repeated the background to his non-refoulement claim and referred to the well-established principles in ST v Director of Immigration (sic)[2] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

5.Having considered the applicant’s Notice of Motion and written submissions, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.The Notice of Motion was filed out of time and there was no explanation on the part of the applicant for the delay therein, nor in his affirmation filed on the same date.  The delay of around 1 month is not insignificant, and the Notice of Motion is liable to be dismissed on this basis alone.  However, we shall go on to consider the merits of the application.

7.The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.

8.Neither the Notice of Motion nor the written submissions identify any supposed error in our judgment and they raise no ground that is reasonably arguable before the Court of Final Appeal.

9.Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his appeal by this court or in processing of his non-refoulement claim.

10.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.For these reasons, the Notice of Motion dated 21 February 2023 is dismissed.

The applicant acting in person