Re Anyiam Prince Nnamaka

CAMP 180/2018

[2019] HKCA 1438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 180 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 887 OF 2017)

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Before: Hon Cheung, Barma and Au JJA in Court

Date of Written Submissions: 13 June 2019

Date of Judgment: 20 December 2019

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J U D G M E N T

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

1.On 23 May 2019, this Court (Barma and Au JJA) handed down our judgment (“the Judgment”) [2019] HKCA 558, refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) given on 22 June 2018 (“the Deputy Judge’s Decision”).

2.We dismissed the applicant’s summons on the basis that the delay was substantial and inordinate and the intended grounds of appeal contained no viable grounds of appeal against the Deputy Judge’s Decision.  In any event, we also found that the Deputy Judge was correct in refusing to grant leave to apply for judicial review.

3.The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

4.On 31 May 2019, the applicant filed a Notice of Motion to apply for leave to appeal against the Judgment to the Court of Final Appeal.  The applicant has also lodged written submissions on 13 June 2019 to support his application pursuant to Master Au‑Yeung’s directions dated 3 June 2019.

5.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), 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.

6.The applicant advanced the following grounds in the Notice of Motion:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in the COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” [sic]

7.In his written submissions, he quoted the same passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 as he did before this court.  He further stated, in summary, that (a) the adjudicator acted in a procedurally unfair manner; (b) the decision could be set aside if it is Wednesbury unreasonable; and (c) the Board should consider the requirements under section 37ZT of the Immigration Ordinance (Cap 115) (“the IO”) for late filing of notice of appeal.

8.Having considered the applicant’s Notice of Motion and written submissions, pursuant to the Practice Direction 2.1, we regard it as appropriate to consider this application on paper without an oral hearing.

9.In our view, this application is devoid of merit.

10.First, nowhere in the applicant’s Notice of Motion or written submissions has he identified any errors in the Judgment.

11.Second, those authorities cited by the applicant in the written submissions did not assist him and we have dealt with them at [13] - [17] of the Judgment.  Further, the complaints raised by the applicant with regard to Country of Origin information in his Notice of Motion and the arguments in his written submissions about procedural unfairness, Wednesbury unreasonableness and section 37ZT of the IO were not argued before the Deputy Judge nor before this court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the appeal before it[1] nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not previously argued in the Court of Appeal[2].

12.In the premises, none of the grounds now raised by the applicant identified any errors in the Judgment. They are not viable grounds of appeal.

13.In any event, for the reasons that we gave in the Judgment, we do not see any prospect of success in the applicant’s intended appeal against the Deputy Judge’s Decision.  Further, none of the questions raised by the applicant in the Notice of Motion or in his written submissions involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision. Nor do we see any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

14.Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.

The applicant acting in person