Re: NGUYEN VAN TRUC

CACV 473/2021, [2026] HKCA 1210

On appeal from [2021] HKCFI 2851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 473 OF 2021

(ON APPEAL FROM HCAL 1048/2021)

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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 25 February 2022, this court (Cheung JA and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung given on 5 October 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 16 July 2021 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 4 May 2021 rejecting the applicant’s non-refoulement claim.

2.The facts and issues in the applicant’s appeal, 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 16 January 2024, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant contended that this was wrong as a matter of law for inter alia (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”.  In his supporting affirmation, the applicant repeated the dangers he may face should he be refouled.  

4.In his written submissions lodged on 29 January 2024, the applicant referred to the well-established principles in 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, affirmation 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.There is substantial delay in the applicant’s filing of the Notice of Motion (over 1 year and 10 months), and there was no attempt on his part to explain this serious delay.  The Notice of Motion should be dismissed on this basis alone.  However, for completeness, we have also considered the merits of the present application for leave, which for the following reasons are in any event lacking.

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.The Notice of Motion does not identify any supposed error in our judgment and it raises 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 leave application by the Judge and by this.

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 16 January 2024 is dismissed.

The applicant acting in person