RE OBIAGWU OLUCHUKWU CHRISTIAN

CAMP 125/2020, [2023] HKCA 812

On Appeal from [2019] HKCFI 309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 125 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 985 OF 2018)

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J U D G M E N T

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

1.  This court handed down judgment on 4 November 2022 ([2022] HKCA 1646) dismissing the applicant’s application to extend time to appeal against an order of DHCJ K.W. Lung given on 8 February 2019 in which he refused to grant an extension of time to the applicant for leave to apply for judicial review and dismissed the leave application in respect of his non‑refoulement claim.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 17 November 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal.  

4.  The Notice of Motion contained the following ground of appeal:

“1. The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the director whereby the director was required to give reasons justifying the decision.

2. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

4. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

5. The Judge did not apply the law properly & Procedural unfairness.”

5.  In compliance with the directions of the Registrar of Civil Appeals made on 6 December 2022, the applicant lodged his written submissions on 20 December 2022.  As it is appropriate to do so, the Notice of Motion is determined on paper without an oral hearing.

6.  In the applicant’s written submissions, he quoted passages from ST v Director of Immigration ^[1][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on the high standards of fairness.  He submitted that high standards of fairness applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  He further referred to section 37ZT of the Immigration Ordinance (Cap. 115) and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.  However, he did not explain or elaborate how the legal authorities and provisions may apply and assist his case.

7.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) (Cap. 484) provides that 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.

8.  Having regard to the judgment of this court, the applicant’s intended appeal has no merit at all. No question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.     

9.  Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

10.  By reason of the above, the Notice of Motion filed on 17 November 2022 is dismissed.