Vu Truong Son v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 59 /2024, [2025] HKCA 714

On appeal from [2023] HKCFI 3066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 59 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1006 OF 2021)

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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 the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 20 November 2024 ([2024] HKCA 1077). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 12 December 2023 refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 18 March 2025.  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 has not lodged 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 the following grounds of appeal in his Notice of Motion and affirmation:

(1)  It is unsatisfactory that the Court of Appeal ruled that he had no chance of success in reviewing the decisions of the Torture Claims Appeal Board and the Director of Immigration;

(2)  If he returns to Vietnam, his life will be seriously threatened or he will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong.  They disregard the law and are willing to kill people;

(3)  It is completely unfeasible for him to change to live in another location as he will face many difficulties and obstacles;

(4)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out his new residence;

(5)  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;

(6)  The court has reached its decision unfairly without allowing him an opportunity to clarify his case and the situation in his country.

Analysis and disposition

4.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).

5.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.

6.The applicant was late for about 2.5 months in filing the Notice of Motion.  The delay is substantial.  He did not provide any reason for his delay. He stated that he believes the merits of his grounds of appeal constitute sufficient justification for the court to exercise its discretion in allowing the appeal to be brought out of time.  We do not see any good ground to grant extension of time for the applicant to file his Notice of Motion. 

7.In any event, the applicant’s grounds were not raised in the leave application before the Court of First Instance or in his previous application before the Court of Appeal.  It is not open to him to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.  We noted that the applicant raised a complaint about the lack of opportunity to clarify his case.  Pursuant to Order 53 rule 3(3) of the Rules of the High Court (Cap 4A), the judge was entitled to determine the leave application on paper without a hearing as the applicant has not requested for a hearing in his notice of application, and the judge has considered the supporting affirmation filed by the applicant.  The Court of Appeal is also entitled to determine the application without a hearing on the basis of written submissions only pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court.  The rest of his grounds are just bare assertions which are not supported by particulars or evidence.  

8.Furthermore, the applicant failed to identify any particular mistakes in our decision, nor did he 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.For the above reasons, we dismiss the Notice of Motion filed on 4 March 2025.