RE NDUKWE BARTHOLOMEW CHUKWUMA

CAMP 14/2020

[2021] HKCA 329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 14 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 14 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 (Hon Yuen and Barma JJA) handed down judgment on 5 August 2020 ([2020] HKCA 643) dismissing the applicant’s application to extend time to appeal an order of DHCJ Bruno Chan (“the Judge”) given on 3 October 2019 refusing to give the applicant leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 21 October 2019, the applicant had filed a summons in the Court of First Instance for leave to appeal out of time, which the Judge dismissed on 14 January 2020. 

3.  On 21 January 2020, the applicant filed a summons in this court, which as mentioned earlier we dismissed on 5 August 2020.  The facts and issues in the intended appeal 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.

4.  On 12 January 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal.  This was out of time, as s.24(2) of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  Excluding the Summer Vacation (1 - 31 August) as specified in Order 3 rule 3 Rules of the High Court, the deadline for filing the Notice of Motion expired on 28 September 2020.

5.  Under s.24(5) and s.24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party. 

6.  In the present case, the applicant’s notice of motion is late by more than 3 months, which is substantial.  The applicant has given no explanation for the delay. 

7.  As to the merits of the intended appeal, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.  The Notice of Motion contains the following grounds of appeal:

“I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary (sic) a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

9.  On 13 January 2021, the Registrar of Civil Appeals directed that the applicant shall lodge his written submissions on or before 26 January 2021, and the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper. 

10.  The applicant lodged his written submissions on 20 January 2021 in which 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 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 deals with 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 application to this court.

11.  As can be seen from the above discussion, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.

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

13.  By reason of the above, the Notice of Motion filed on 12 January 2021 is dismissed.