Nguyen Van Thien v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 363/2023, [2024] HKCA 1050

On Appeal From [2023] HKCFI 2668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 363 OF 2023

(ON APPEAL FROM HCAL NO 1389 OF 2021)

________________________

________________________

_______________

J U D G M E N T

_______________

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

1.On 2 November 2023, Deputy High Court Judge K W Lung made an order (“the Order”) refusing to grant to the Applicant leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 26 April 2021, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration dated 30 December 2019 rejecting his non-refoulement claim.

2.The Applicant lodged a Notice of Appeal against the Order on 15 November 2023. However, he failed to comply with the directions given by the Registrar of Civil Appeals on 15 November 2023 to lodge two sets of appeal bundle on or before 29 November 2023, and further failed to comply with an unless order of the Court made on 15 December 2023 (“the Unless Order”) requiring him to lodge the appeal bundle by 29 December 2023.

3.Pursuant to the Unless Order, the Applicant’s appeal was dismissed on 29 December 2023.

4.By a judgment dated 5 September 2024 (“the CA Judgment”), the Court dismissed the Applicant’s application made on 3 July 2024 seeking relief from sanction for his failure to comply with the Unless Order.

5.By a Notice of Motion filed on 8 October 2024, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the Applicant alleges that he will be tortured, beaten, or even killed if he returns to Vietnam because the creditors and gangsters in Vietnam are cruel and violent, disregard the law, and are willing to kill people to satisfy their anger and ferocity. The Applicant disagrees with the Director’s assessment that he can relocate to live in another part of Vietnam, and alleges that the Immigration Department failed to consider his human rights under, inter alia, the Basic Law and the International Covenant on Civil and Political Rights.

6.In his affirmation filed on the same date, the Applicant alleges that the decision made by the Court of Appeal was reached unfairly without allowing him an opportunity to clarify his case and the situation in his home country. This complaint has no substance in view of the fact that the Court was entitled to deal with the application for relief from sanction on paper pursuant to Order 59, rule 14A of the Rules of the High Court, and considered that it was appropriate to do so in the circumstances of this case. The Applicant also states that he understands that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, but he fails to identify or explain what that ground may be.

7.The Applicant has not filed any written submissions in support of the leave application, contrary to the directions given by the Registrar of Civil Appeals dated 8 October 2024.

8.Pursuant to paragraph 3 of Practice Direction 2.1, we determine the present application for leave to appeal on paper without an oral hearing.

9.Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter 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.

10.No question of great general or public importance involved in the intended appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the intended appeal. The Applicant has not identified any error in the CA Judgment, or raised any viable ground of appeal against the CA Judgment. We are satisfied that the intended appeal has no merits and no reasonable prospect of success.

11.There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

12.Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

The Applicant, acting in person