RE NZEWI JUDE UGOCHUKWU

CAMP 218/2022, [2024] HKCA 420

On Appeal From [2021] HKCFI 1197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 218 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1414 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court)  :

1.  On 17 April 2023, this Court (Cheung and Yuen JJA)  handed down decision ([2023] HKCA 533)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Bruno Chan given on 30 April 2021 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 9 May 2023, the applicant filed a notice of motion applying for leave to appeal this Court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 19 May 2023.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.   We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our decision.  We will not repeat them.

5.  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.

6.  The notice of motion stated the following :

‘ 1. Failed to consider the fact that I had raised in my claim that why I would not be return to my country of origin.

2. I was late to submit my notice of appeal out of time because I was not received the Decision on time in my address.

3. Failure to consider my claim under BOR 2 and 3 risk that where I would face real risk upon refoulement.

4. Failure to consider the fact that my enemies still will kill me once I return to my country.’

7.  In summary the applicant stated the following in the written submissions :

(i)  The applicant was late in filing notice of appeal because he did not receive the Court of First Instance decision on time;

(ii)  The Judge refused to extend time because the applicant was late to file judicial review application;

(iii)  The Judge did not consider the applicant’s extension application and did not consider the applicant’s reasons stated in his summons for extension of time;

(iv)  The applicant faces real risk from his enemies.  He would be killed if refouled; and

(v)  The Court failed to take account relevant information and took into account irrelevant information.

8.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  We have dealt with (i)  at [15] of our Decision.  Part (ii)  is factually incorrect as the Board’s decision was dated 1 June 2018 and the applicant’s Form 86 was filed on 18 July 2018, which was within time.  Part (iii)  and (iv)  are bare assertions unsupported by any details.  Part (v)  is concerned with finding of fact which is within the provenance of the Board.

9.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

10.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met, we, accordingly, dismiss the notice of motion.