OGBOZOR TOCHUKWU EUGENE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 542/2021

[2022] HKCA 1498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 542 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1436 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down 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 G Lam JA) handed down on 6 May 2022 ([2022] HKCA 607). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 18 August 2021 refusing to grant extension of time for the applicant to seek leave for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 20 May 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 6 June 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 lodged a non-refoulement claim on 4 September 2014 on the basis that he would be harmed or killed by people from the Niger Delta Group.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 9 November 2021[2].

5.  On 30 November 2021, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 6 May 2022 as he failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The applicant attached his grounds of appeal to the Notice of Motion filed on 20 May 2022 which may be summarised as follows[3]:

(1)  The judges failed to apply high standards of fairness and did not consider properly the applicant’s case that he would be harmed or killed by the Niger Delta Group and/or the Niger Delta Militant Organization.

(2)  The Director of Immigration (“the Director”), the Board and the judges failed to evaluate the risk posed by the said organizations and did not take into account the gross failure of “the Nigerian Security architecture”. There is irrationality, procedural unfairness and lack of anxious scrutiny and examination in relation to the applicant’s case.

(3)  The facts of his case and the evidence clearly proved that the Nigerian government and its security agents failed to contend with the opposition groups and insurgencies. The Director, the Board and the judges failed to recognize the dangerous security threats in Nigeria. Thus, it is believed that the decision refusing to grant extension of time to seek leave for judicial review is irrational and unreasonable.

(4)  Considering his application on paper without an oral hearing was unreasonable because the applicant did not have the opportunity to clarify any contested issues and ambiguity.

(5)  His life will be in grave danger if he is refouled to Nigeria because the state and authorities will not protect him and the insurgencies and uprising in Nigeria have worsened.

(6)  The Director, the Board and the judges gave little consideration to the main issue but put huge emphasis on trivial issues such as the short delay in the application.

Analysis and disposition

7.  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.

8.  Most of the applicant’s grounds have already been dealt with by the Court of Appeal in its decision dated 6 May 2022. The applicant’s grounds and submissions in the present application are just bare assertions without evidence in support. In particular, he failed to provide evidence to show that the Court of Appeal was wrong in rejecting his application. Despite the directions of the Registrar of Civil Appeals on 20 May 2022 that no further document shall be lodged without leave of the court, the applicant attached two documents to his Notice of Motion which appear to be some online news reports, without first applying for leave to produce the same. The Court of Appeal would not consider such documents under these circumstance. In any event, these documents are not directly related to the applicant’s case and do not assist his present application.

9.  Moreover, 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).

10.  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 20 May 2022.