CHUKWUEMEKA NDUBISI ANTHONY v. TOTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 550/2020

[2021] HKCA 1016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 550 OF 2020

(ON APPEAL FROM HCAL NO 1727 OF 2018)

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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 Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Chu JA) handed down on 13 May 2021 ([2021] HKCA 676). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge K W Lung dated 21 May 2020 ([2020] HKCFI 874) refusing to grant extension of time for the applicant to apply for leave to apply for judicial review concerning his non‑refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 25 May 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 4 June 2021.  Having considered his submissions, we consider it appropriate to determine this application on paper.

3.  The applicant is a national of Nigeria.  He came to Hong Kong as a visitor on 16 October 2015.  He subsequently overstayed and was arrested by the police on 4 February 2016.  He lodged his non‑refoulement claim on 15 April 2016 on the basis that he will be harmed by his uncle if he returns to Nigeria because he was robbed on his way to put money into a bank for his uncle and he is unable to pay back the money to his uncle.

4.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 9 September 2016 and 5 June 2017.  His appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board(“the Board”) on 24 October 2017.

5.  He filed a Form 86 on 23 August 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board, after the expiry of the 3-month period for taking out the leave application.  DHCJ K W Lung refused to grant extension of time and dismissed the leave application on 21 May 2020.

6.  On 4 June 2020, the applicant applied for leave to appeal against the judge’s decision.  On 29 September 2020, DHCJ C P Pang considered it as an application for extension of time to appeal and granted an extension of 14 days for the applicant to file his notice of appeal^[1].

7.  On 12 October 2020, the applicant filed a notice of appeal against the decision of DHCJ K W Lung.  The appeal was dealt with by the Court of Appeal on paper as the applicant consented to the disposal of his appeal on paper by the Court of Appeal without an oral hearing.  The appeal was dismissed by the Court of Appeal on 13 May 2021.  The applicant filed a Notice of Motion on 21 May 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

8.  The applicant stated his grounds of appeal in the Notice of Motion which may be summarized as follows:

(1)  His life is in danger;

(2)  There are errors in both the decisions of the Director and the Board as they did not observe the extent of risks in his non‑refoulement claim;

(3)  The currency exchange rate of the money involved is higher now and he does not have this amount of money.  He has no job in Hong Kong;

(4)  There is war in his country now.

9.  He made further contentions in his written submissions which may be summarized as follows:

(1)  His uncle will expect him to pay back the money otherwise his uncle will kill him.  Because of inflation and the increase in exchange rate, the money he has to repay has increased by two times.  It is impossible for him to get the money to repay his uncle;

(2)  He lost his passport in Hong Kong so relocation is impossible;

(3)  Nigeria is now under attack by terrorist groups.  The Muslims in Africa want to Islamize Nigeria.  He is a Christian so he may be killed by the Muslims in Nigeria.  The battle is going on and the American and UK governments have granted asylum to his ethnic group as a result;

(4)  The government of Nigeria is proscribing the people in Biafra as terrorists and killing the people there every day.  The government is killing, abducting and destroying lives and properties;

(5)  The applicant’s appeal was rejected because of the ‘unhealthy country of origin information’ the Director got about Nigeria which was posted by the Nigerian Muslim journalists to mislead the world.  There is real risk should he return to Nigeria.

Analysis and disposition

10.  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. 

11.  Most of the applicant’s grounds have been sufficiently dealt with in the Court of Appeal’s judgment dated 13 May 2021.  In the present application, the applicant failed to demonstrate that the Court of Appeal was wrong in rejecting his appeal.  He repeatedly complained against the country of origin information relied on by the Director but he has not provided any evidence to rebut the Director’s findings.  He has also failed to adduce any evidence or offer any explanation for the significant discrepancies in his own evidence identified by the Board to refute the Board’s findings against him.

12.  He put forward some new grounds in his Notice of Motion and written submissions which were not raised in his previous application before the Court of First Instance or in the appeal before the Court of Appeal.  For example, he contended that relocation is impossible because he lost his passport in Hong Kong and that there is war in Nigeria now.  It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings. 

13.  In any event, he failed to provide any supporting evidence to show that he cannot re-apply for a passport in Nigeria or that a passport is needed for internal relocation.  Furthermore, he has not provided any reliable information, particulars or evidence regarding the war in Nigeria and the risk he will face.

14.  Most importantly, the applicant failed to identify 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). 

15.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 21 May 2021.