RE ONONIWU OKECHUKWU RAYMOND

CACV 613/2020

[2021] HKCA 1989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 613 OF 2020

(ON APPEAL FROM HCAL 2935/2018)

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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 an application for leave to appeal to the Court of Final Appeal (“CFA”)  against this court’s judgment dated 29 September 2021 ([2021] HKCA 1440)  (“Judgment”), dismissing the applicant’s appeal from the decision of Deputy High Court Judge P Li dated 12 November 2020 ([2020] HKCFI 2876)  refusing him leave to apply for judicial review of the decision dated 18 October 2018 (“Board’s Decision”)  of the Torture Claims Appeal Board (“Board”)  concerning his non-refoulement claim.

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals (“Registrar”), unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  Having considered the material available to us, we agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  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

4.  In support of the present application, the applicant has attached to the notice of motion filed on 22 October 2021 a 5-paragraph document setting out the reasons why he disagreed with the Judgment.  He then lodged the same document as his written submission on 5 November 2021.  The 5 paragraphs are repetitive and can be distilled into the following points:

(1)  The present situation in Nigeria is war-like.  A full-blown war could be imminent.  It is too dangerous for him to be deported back to Nigeria.  The Boko Haram and other terrorist groups would target him.  His life would be in great danger.  The Nigerian authorities could not protect him. Internal relocation would not be the best option.  The Director of Immigration (“Director”), the Board and the judges had failed to take proper account of the evidence presented by him which was “abound and compelling”.  His case has sufficient merit.  He should be granted leave to apply for judicial review. 

(2)  The applicant had not been accorded a reasonable opportunity to establish his claim.  The High Court failed to invite him to the hearing of his leave application.

(3)  The entire arrangement for dealing with non-refoulement protection claims is a “travesty” and is designed to ensure failure of every claim.  It is procedurally unfair and should be reformed.

(a)  The provision of legal representation at the screening interviews by the Immigration Department is dubious since the barristers/solicitors in attendance usually do not utter a word throughout the whole process.

(b)  The lack of legal representation for the appeal to the Board and the proceedings in the High Court is procedurally unfair.

(4)   The Director, the Board and the judges had erred in not redressing the procedural injustice.

Discussion

5.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise. 

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

7.  The applicant did not really engage the reasons we gave in the Judgment by making the assertions summarised in [4] above.

8.  In any event, such assertions are unmeritorious:

(1)  First, as noted in [10] to [12] of the Judgment, the Board dismissed the applicant’s appeal because it considered his entire account to be fanciful, inconsistent and implausible. The point summarised in [4(1)] above has no place in face of such finding. 

(2)  Second, it was the applicant himself who did not ask for an oral hearing of his application for leave to apply for judicial review of the Board’s Decision.  See [13] of the Judgment.

(3)  Third, the applicant had never at any stage raised the matters stated in [4(3)] above.  In this regard, the applicant had previously only complained:

(a)  before the Judge: that the Board had failed to consider his mental suffering and had made unreasonable findings of fact, in particular, that of availability of state protection; and

(b)  before this court: that he would face hardship if deported back to Nigeria and that the Board relied on non-officially recognised or hearsay news and outdated cases.

(4)  Fourth and consequently, the conclusion stated in [4(4)] above is groundless.

9.  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.