RE GBEDEGBE-ESSEGNO KODJOGAN IGNEZA

CACV 225/2024, [2025] HKCA 200

On Appeal From [2024] HKCA 902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 225 OF 2024

(ON APPEAL FROM HCAL NO. 2752 OF 2018)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Cheng J (giving the Judgment of the Court):

1.  On 17 October 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 4 October 2024 (“the Judgment”) ([2024] HKCA 902).  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”) dated 21 May 2024, by which the Judge dismissed his application for leave to apply for judicial review ([2024] HKCFI 1358).

2.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

4.  In his Notice of Motion, the applicant stated:

“In reference of the Amnesty International report dated on July 19, 2005 (Togo: Will history repeat itself?) there were a serious violations of Human Rights by the security forces and militias. They attacked and killed opposition members or ordinary citizen in their homes during the Presidential Election. Right now the Human Rights violation still occurred and I will be in danger to return to my country, and I am not rely on Togolese justice to protect my Human Right.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 31 October 2024. In those submissions, he cited passages from various human rights reports and stated that he feared he would be subjected to arrest and detention upon refoulement to Togo owing to his political and human rights activism.  He further claimed that he decided to relocate to Malaysia with his “MM2H visa” approval letter but on 25 September 2019 the Director of Immigration “have forced [him] to pervert the course of justice in violation [of his] basic and constitutional rights by a phone call to his phone number” and attached a screen capture of a record of the alleged phone call.

6.  In our view, the applicant’s application is plainly devoid of merit.  His assertions are all vague, bare and unsupported by any specific particular or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Moreover, his allegations are essentially a repeat of those submissions he previously made before this court in his appeal, which we had already fully considered and rejected: see [8] - [16] of the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which have already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3].  In particular, as stated at [12] of the Judgment, it is not for the Court of Appeal to review the decision maker’s decision afresh.  It is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  We see no error or law or procedural unfairness or irrationality in the Board’s Decision.  The applicant has failed to identify any specific error in the Judgment.  As to the alleged phone call, there is no evidence to substantiate his serious allegations.  Even taking the applicant’s assertion at its highest, it occurred after the Board’s Decision and the applicant did not raise it in the court below.  We fail to see how it is relevant to the Board’s Decision.  For the above reasons, his submissions have no merit and in any event do not constitute proper grounds of appeal.

7.  Further and in any event, even taking his case at its highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

8.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

9.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion filed on 17 October 2024 is dismissed.