Re Izebhor Festus Osakwe

CACV 141/2021, [2023] HKCA 842

On Appeal from [2021] HKCA 1894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 141 OF 2021

(ON APPEAL FROM HCAL 682/2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the judgment of the court):

Application

1.Before the court is a notice of motion filed on 26 January 2023 for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment dated 16 December 2021[1] of this court (Au JA and Lisa Wong J) (“Judgment”). By the Judgment, this court dismissed the applicant’s appeal from a decision dated 19 March 2021[2] by Deputy High Court Judge Bruno Chan, refusing him leave to apply for judicial review of the decision dated 8 March 2018 of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim.

2.We note that the notice of motion is out of time for more than a year.

Paper disposal appropriate

3.Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper on the basis of the written materials filed with the court without an oral hearing. We agree that paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

4.Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

5.In seeking leave to appeal to the CFA, the applicant first stated in the notice of motion that he wants to go to the CFA because “[a]ll this judgements are not good for him.” (sic).

6.Second, on 9 February 2023, the applicant lodged written submission, by which he repeated the procedural history of his claim for non-refoulement protection and asked this court to allow him to go to the CFA so that he can fight for himself and all asylum seekers.

Discussion and disposition

7.A delay of more than a year is, on any view, significant.

8.The applicant has not given any explanation that may justify the time taken by him in issuing the notice of motion.

9.The notice of motion could be dismissed on the ground of the applicant’s inexcusable substantial delay alone.

10.In any event, the proposed appeal to the CFA has no reasonable chance of success.

11.In this regard, we have given reasons for dismissing the applicant’s appeal against the refusal of leave for judicial review (at [18]-[21] of the Judgment). The applicant has made no attempt to engage our reasons. He has plainly not identified any specific error in the Judgment that raises any, or any arguable, issue for determination by the CFA, whether of great, general or public importance or otherwise.

12.Nor do we see any scope to grant leave under the “or otherwise” limb.

13.As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.

The applicant, unrepresented, acted in person