EZE PATRICK CHIBUIKE v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 469/2019

[2020] HKCA 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL APPEAL NO 469 OF 2019

(ON APPEAL FROM HCAL 861/2018)

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J U D G M E N T

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Hon Marlene Ng J (giving the Judgment of the Court):

I. INTRODUCTION

1.  On 27 May 2020, this court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on on 25 September 2019 in HCAL861/2018 refusing leave to the applicant to apply for judicial review.  The applicant sought to review the decision of the Director of Immigration (“the Director”) and the decision of the Torture Claims Appeal Board (“the Board”) that rejected his non-refoulement claim.

2.  The facts and issues in the appeal as well as this court’s reasons for dismissing it are set out in our judgment.[1]  We shall not repeat them here.

3.  On 5 June 2020, the applicant filed a Notice of Motion for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“On 27 May 2020 the Honourable Judges of the Court of Appeal dismissed my leave to apply for judicial review. I do not agree with his decision. I did not get fair decision. To get fair judgment, I want to go to the Court of Final Appeal as I have no way to return to my country of origin.”

4.  The applicant lodged written submissions in support of the application on 19 June 2020.  In the written submissions, the applicant stated he disagreed with the judgment of this court and wished to apply for leave to appeal to the Court of Final Appeal for a fair decision.  He submitted he was a single 35-year old bachelor from the Enugu state in Nigeria who should have been leading a good life after he graduated (and his colleagues who lived in other countries with good governance were leading good lives), but his life was wasted in Hong Kong as he was in danger of being killed or harmed if he were to return to Nigeria.

5.  The applicant submitted he was a target of the authorities and the All Progressive Congress (APC) in Nigeria because of his involvement and participation in the MASSOB movement for the actualisation of the sovereign state of Biafra and the Indigenous People of Biafra (IPOB), which the Nigerian government declared to be terrorists.  Even though the Director doubted his credibility, the applicant claimed that the truth remained he was afraid to return to Nigeria because the authorities there could not be trusted and could not protect him.  He claimed he was entitled to non-refoulement and right to life protection due to BOR2 risk[2] and persecution risk[3] as he feared he would be subject to extra-judicial killing and untimely death if he returned to Nigeria.

6.  The applicant claimed that instead of protecting its citizens, the Nigerian government under Mohammadu Buhari (a Muslim) was busy killing Christians, and he was one of its targets.  He further claimed he belonged to the Igbu tribe who were Christians, and that “America is angry with Nigeria” because of “bad treatment against my tribe”.  He wanted the court to take time to look into country of origin information (“the COI”) in respect of Nigeria because the COI considered by the Director and the Board was misleading in that they were gathered from Muslim media and journalists. He claimed that the decisions by the Director and the Board failed to satisfy the requirements of Articles 2 and 3 of the Hong Kong Bill of Rights.

7.  The applicant further submitted there was no option for relocation in any part of Nigeria as every part of the country was not safe.  He claimed there was much injustice, prejudice and unfairness in the decisions of the Director and the Board, and the errors and/or mistakes of such decisions should be overturned as he expected justice and fairness from the court.  He stated that as a Nigerian he was in a better position to give an account of the position on the ground in Nigeria than the Director and/or the adjudicator of the Board who did not visit Nigeria, and he complained that the Director and the Board did not address the question whether the Nigerian government had the capacity to provide adequate protection for him if he were to relocate to any part in Nigeria given the Islamisation agenda of the Nigerian government to convert all Christians to Muslims.

8.  Pursuant to the directions made by the Registrar of Civil Appeals on 9 June 2020, the Notice of Motion shall be determined on paper without an oral hearing unless the court otherwise directs. Having considered the applicant’s Notice of Motion and written submissions, we see no reason to depart from the usual practice of determination of this kind of application on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed/lodged.

9.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Section 22(1)(b) provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question in the appeal involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine.  Nor is any such question apparent to us from the matters he has raised.

10.  As explained in [9] and [20] of our judgment, it is clear from Re Moshsin Ali[4] that the decision of the Director are not susceptible to judicial review as the applicant has appealed/petitioned to the Board from such decision.

11.  Further, the grounds raised in the applicant’s written submissions are basically a repetition of the grounds of appeal relied on by the applicant in his appeal to this court.[5]  Such grounds and arguments by the applicant have already been dealt with by this court in [15]-[23] of our judgment.  The applicant has not demonstrated any reasonably arguable basis that this court was wrong in dismissing his appeal.  The applicant has not given any particulars of how we have overlooked the grounds he relied on in his appeal, and the assertion by the applicant that our judgment is not fair does not identify any error in our judgment and is not a viable ground of appeal.  As said, we have given reasons at [15]-[23] of our judgment for dismissing the grounds of appeal identified at [11]-[12] of our judgment.

12.  In our view, the grounds raised by the applicant are not reasonably arguable before the Court of Final Appeal.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

13.  For these reasons, the Notice of Motion filed on 5 June 2020 is dismissed.