RE EZEABARA CHINEDU

CAMP 206/2019

[2020] HKCA 769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 206 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 605 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 21 May 2020 ([2020] HKCA 327), this Court (Yeung VP and Pang JA) refused to grant leave to the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 21 June 2019 in HCAL 605/2018 refusing to grant an extension of time for him to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 25 May 2017 dismissing his petition/appeal from the decisions of the Director of Immigration (“Director”) given on 10 December 2015 and 25 October 2016 rejecting his non-refoulement claim.

2.  By a notice of motion dated 10 June 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“On 21 May 2020 The Honourable Judges of the Court of Appeal dismissed my claim for leave to apply for judicial review. I do not agree with them. I did not get fair justice. The Judges failed to show any good cause for cancel. But points were very strong. Now I want to go to the Court of Final Appeal for justice.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 18 July 2020, the applicant lodged his written submissions on 31 July 2020.

4.  In his 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 Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non - refoulement claim and that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility. Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is about the late filing of notice of appeal to the Board. However, he did not explain and elaborate how the aforesaid cases and statutory provision were related to or would assist his case.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  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.

7.  In our judgment, nothing set out in the notice of motion and the written submissions can constitute as viable ground of appeal as they did not pinpoint any error of law or raise any discernible or arguable ground for disturbing our judgment.  As stated at [17] of our judgment, the applicant’s case was rightly rejected by the Board on the issue of credibility and we took the view that the Board’s decision was well justified and without flaw.  

8.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22 that an applicant did not need to seek leave under section 14AA of the High Court Ordinance (Cap. 4) (“Section 14AA”) to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it cannot assist the applicant in this instance because:

(a)  the present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose for an appeal to the Court of Final Appeal regarding such refusal of leave.  The reversal of our decision on Section 14AA leave would not automatically lead to success in his appeal against the Judge’s decision of 21 June 2019.  To achieve that he would need to bring an appeal to this Court;

(b)  due to lapse of time, the applicant would need an extension of time to bring an appeal to this Court and if he had made such application, the Court would have regard to the merits of his intended appeal in deciding if extension should be granted; and

(c)  having regard to our views on the lack of merit in his intended appeal as set out at [17] of our judgment of 21 May 2020, this Court would not grant an extension of time for a futile appeal to be brought.

9.  For the aforesaid reasons and the reasons on the merit of the applicant’s appeal that we gave in our judgment of 21 May 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either. The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.