RE MGBENKA KINGSLEY ONYEKACHI

CACV 446/2020

[2021] HKCA 1322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 446 OF 2020

(ON APPEAL FROM HCAL NO. 156 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  On 15 March 2021, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 16 June 2020 which refused to give him leave to apply for judicial review.   

2.  On 4 June 2021, the applicant filed a notice of motion together with an affidavit to apply out of time for leave to appeal against our judgment to the Court of Final Appeal.  He has also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affidavit 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.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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 on such terms as it considers appropriate extend the time for making the application.

6.  The applicant’s notice of motion was late by more than seven weeks.  For the reasons set out below, we are of the view that we should not extend the time for the applicant to apply for leave to appeal.

7.  First, the applicant explained in his affidavit that the application was late because he did not receive the judgment within the time stipulated for appeal.  He has not, however, elaborated on this.  The applicant was told at the hearing of the appeal on 8 March 2021 that the judgment would be handed down on 15 March 2021, and a copy would be mailed to the address stated in the notice of appeal, which he confirmed was correct.  We specifically reminded the applicant that if he did not receive the judgment after a short period from 15 March 2021, he should contact the court to make enquiries.  The court record shows that the applicant only made a search of the court file on 31 May 2021.  In the circumstances, we are not satisfied there is good reason for the delay.

8.  Second, and more importantly, the application for leave to appeal has no merits.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

9.  The notice of motion set out the following grounds in support of the application:

(1)  The decision marker only relied on country of origin information (“COI”)  and facts about the applicant that favour the rejection of his claim.

(2)  Actual life and situation were different from what was stated in the COI.  The officer and the courts chose to ignore the overwhelming evidence of violence towards minorities.

(3)  The decision betrayed a biased and formulaic approach and was unlikely to be a fair assessment of the danger to the applicant’s life.  It was clearly unreasonable.

10.  The written submission is substantially the same as the one the applicant put in to support his appeal to this Court (see this Court’s judgment at [12]).  It additionally cited two decisions on the Wednesbury unreasonableness principle, and referred to section 37ZT of the Immigration Ordinance, Cap. 115 dealing with late filing of appeal to the Torture Claims Appeal Board from the decision of the Direction of Immigration.  

11.  We are of the view that what had been put forward in the notice of motion and the written submission do not provide viable grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  Further, for the reasons we gave in [14] to [17] of our judgment, the grounds stated in the notice of motion and the arguments in the written submission are unarguable.  Additionally, it has not been shown how the arguments in the written submission relate to the applicant’s case. 

12.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).  The statutory requirement for giving leave to appeal are not met.

13.  For the above reasons, we refuse to extend the time for applying for leave to appeal to the Court of Final Appeal and dismiss the notice of motion.