OGUZIE IKECHUKWU CHARLES v. TORTURE CLAIMS APPEAL BOARD

CACV 469/2021

[2022] HKCA 963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 469 OF 2021

(ON APPEAL FROM HCAL NO 1518 OF 2018)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Lisa Wong J) handed down on 21 January 2022 ([2022] HKCA 135). The Court of Appeal rejected the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 30 September 2021 ([2021] HKCFI 2925) refusing to grant leave to seek judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 8 February 2022 that the notice of motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 22 February 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Nigeria. He last arrived in Hong Kong on 17 May 2007 as a visitor. On 19 May 2007, he was arrested by the police for money laundering when he was trying to withdraw money from a bank account with a Namibia passport of another person upon the instruction of his business partner Jerry. He was subsequently convicted and sentenced to imprisonment of 28 months. He raised a torture claim on 11 April 2008 when he was serving his sentence. His claim was made on the basis that he would be harmed or killed by Jerry upon return to Nigeria for disclosing Jerry’s illegal activities to the police. His torture claim was later treated as a non-refoulement claim under the Unified Screening Mechanism.

4.  He filed a Form 86 on 1 August 2018 to seek leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”). His application was dismissed by DHCJ Bruno Chan on 30 September 2021.

5.  The applicant filed a Notice of Appeal on 12 October 2021. The appeal was dismissed by the Court of Appeal on 21 January 2022. The applicant filed a Notice of Motion on 8 February 2022 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

6.  The applicant attached his grounds of appeal to the Notice of Intended Application for Leave to Appeal filed on 8 February 2022. His grounds may be summarised as follows:

(1)  His case has enormous merit and his evidence is compelling and reasonable.

(2)  The Director of Immigration, the Board and the judge failed to take into proper account the risk to his life. Their decisions were irrational and amounted to procedural unfairness.

(3)  He would be in great danger of being subjected to BOR risk upon his return to Nigeria. Nigeria has recently plunged into terrible political instability, violence and attacks in six different geopolitical zones. The option of state protection and internal relocation is in serious jeopardy.

(4)  The insurgencies of different groups and terrorist organizations have ruined Nigeria with havoc and bombardments which had led to the deaths of thousands of innocent civilians.

(5)  The Nigerian police and military personnel have been decimated. The precarious and dangerous situation has rendered the relocation option impossible.

7.  He made further contentions in his written submissions as follows:

(1)  The Muslim extremists and the Jihadist bigots are killing hundreds and thousands of Christians in his region on a daily basis. The authorities cannot protect them.

(2)  The decision of the judges is harmful and detrimental to the applicant’s existence. Allowing a continuous miscarriage of justice and failure to cure a clear case of procedural unfairness based on the lack of consideration of BOR 3 would put his life in great danger.

(3)  The physical or mental ill-treatments in the past were very serious and the risk should be assessed to be high.

(4)  He has not been given a reasonable opportunity to establish his claim. The High Court failed to invite him to a very important hearing concerning his application for leave to apply for judicial review. Such treatment is unfair.

(5)  He does not have legal representation in the process of appeal.

(6)  The system is designed to reject every application.

Analysis and disposition

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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 Court of Appeal has sufficiently considered the applicant’s grounds of appeal and submissions and given detailed reasons for its decision. In particular, the court found that the applicant does not have any evidence to refute the Board’s findings that the applicant was untruthful and that the allegation of change of circumstances is not a valid ground of appeal against the judge’s refusal to grant leave to apply for judicial review, whilst noting that it is open to the applicant to make a subsequent claim to the Director if there has been a significant change of circumstances. The applicant failed to show that the Court of Appeal is wrong in its decision.

10.  Contrary to the applicant’s submissions, an oral hearing was conducted for his application for leave to bring judicial review on 19 January 2021, during which he was given the opportunity to make submissions before DHCJ Bruno Chan. The allegation that the system rejects every application is untrue.

11.  Besides, the applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 8 February 2022.