AKINBOBOLA IDOWU ALEXANDRA v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CAMP 198/2018

[2019] HKCA 996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 198 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 701 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  On 30 May 2019, this Court (Chu and Barma JJA) handed down our judgment^[1] (“the Judgment”) refusing to give leave to the applicant to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 27 July 2018.

2.  On 30 July 2019, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission to support his application. 

3.  The applicant requested an oral hearing.  Having considered the applicant’s notice of motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing[2]. We have therefore proceeded to determine the applicant’s application on the basis of the papers before us.

4.  The applicant raised three points in the Notice of Motion as follows:

(1)  His life is in danger.

(2)  He has lived in Hong Kong for eight years, and has led a law-abiding life throughout.

(3)  He has married a local girl in Hong Kong. They have been living in fear as a result of the uncertainties surrounding the applicant’s claim and the danger that he will face if he were forced to return to his home country.

5.  In his written submission, the applicant repeated the basis of his claim and reiterated that his life would be in danger if he were refouled to Nigeria.  He stated that the family members of Rebecca were still looking for him, the practice of rituals, which he was falsely accused of, would attract death penalty and mob-attacks, and there had been incidents of people accused of practising rituals being killed.    

6.  Under section 24(2) of the Court of Final Appeal Ordinance, application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

7.  The notice of motion in this case was filed more than one month late.  The applicant explained in his affirmation that it was because he did not know that he could appeal that he failed to make the application within the time limit.  Considering the applicant is not legally represented and the delay is not very serious, we are prepared to accept his reason for the delay.

8.  The more important consideration in deciding whether to extend time is the prospect of the applicant’s intended application for leave to appeal to the Court of Final Appeal.     

9.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, leave to appeal to the Court of Final Appeal may be granted 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.  What was put forward in the Notice of Motion and the written submission all relate to the applicant’s personal circumstances, and do not involve any question of great general or public importance.  As pointed out in [16] to [20] of our judgment, as the applicant had not given any ground for his intended appeal against the Judge’s decision, there is no basis upon which the Judge’s decision could be disturbed by the Court of Appeal.  There is also no basis for granting leave under the “otherwise” limb under section 22(1)(b).

10.  In the circumstances, the intended application for leave to appeal to the Court of Final Appeal has no prospect of success.  This being the case, it would be futile to extend the time for making the application.  Accordingly, we refuse to extend the time and dismiss the Notice of Motion.