Nnoli Chukwudi Kenneth v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 263 /2019

[2020] HKCA 524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 263 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 1050 OF 2017)

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Before: Hon Kwan VP, Barma JA and Au JA in Court

Date of Written Submission: 17 June 2020

Date of Judgment: 3 July 2020

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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 application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 20 May 2020^[1] refusing to grant leave to appeal out of time against the decision of Campbell-Moffat J on 20 April 2019^[2]. The judge had refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) concerning the applicant’s non-refoulement claim and refused to grant leave to him on 4 September 2019^[3] to appeal against her decision in April 2019 out of time.

2.We refused to grant leave to appeal out of time because we found the applicant’s delay inexcusable and he does not have any prospect of success in the intended appeal.

3.The applicant filed a Notice of Motion on 26 May 2020 for leave to appeal to the Court of Final Appeal.

4.On 28 May 2020, the Registrar of Civil Appeals directed the applicant to lodge a written submission on or before 9 June 2020 and upon compliance with the direction or on the expiry of the time for doing so, and unless otherwise directed by the Court of Appeal, the notice of motion shall be determined on paper without an oral hearing.

5.The applicant lodged a written submission in support of this application only on 17 June 2020.  He explained that his lateness was due to the fact that he was unable to check his mail frequently and that he had to find someone to assist him to write his submission.

6.We think it appropriate to determine this application on paper and will proceed to do so, taking into consideration the applicant’s submission.

7.In the Notice of Motion, the applicant merely stated that the judgment is not correct, he did not get justice and the judges did not do a good job.

8.In his submission, he raised a number of contentions which may be summarised as follows:

(1)  He is afraid that he might be harmed or killed by his creditor because he cannot repay the loan.

(2)  Religious crisis is going on in his home country in Nigeria.  His country is now killing Christians from Igbo tribes and he is from Igbo.

(3)  The country of origin information used by the Director is wrong and misleading.

(4)  Both the Director and the Torture Claims Appeal Board (“the Board”) acted unreasonably and were unfair by placing too much reliance on country of origin information.  They failed to take into account his personal background, experience and pain of injury.  The Director and the Board also failed to address the question of whether the Nigerian government has the capacity to provide adequate protection to him.

9.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 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.

10.The applicant’s ground pertaining to the religious crisis in Nigeria was not raised in his previous applications in both the court below and in the Court of Appeal.  It is not open to the applicant to put forward a new ground for the first time at this late stage of these proceedings, well outside the time limit for bringing judicial review proceedings.  In any event, this ground is just a bare assertion without evidential basis. 

11.The rest of his grounds are substantially the same as the grounds he raised to the Court of Appeal in his previous leave application.  The Court of Appeal has already dealt with these grounds in the judgment of 20 May 2020. The applicant has not pointed out any error in the Court of Appeal’s judgment.

12.The applicant’s grounds of appeal do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  He has not identified 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).

13.For the above reasons, we dismiss the application for leave to appeal to the Court of Final Appeal.

The Applicant, acting in person