KAMARA ALPHA IBRAHIM BUBA v. DIRECTOR OF IMMIGRATION

CAMP 54/2020

[2021] HKCA 781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 54 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 507 OF 2018)

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J U D G M E N T

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Hon Kwan VP (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 Cheung JA) handed down on 28 January 2021 ([2021] HKCA 70). The Court of Appeal dismissed his application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan dated 5 July 2019 ([2019] HKCFI 1049) refusing to grant leave to apply for 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 28 April 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions nine days late on 20 May 2021.  Having considered his Notice of Motion and written submissions, it is considered appropriate to determine this application on paper.

3.  The applicant first arrived in Hong Kong as a visitor on 13 February 2013 with a passport issued in Sierra Leone, but he claimed in the screening interview that he is in fact Nigerian born in Nigeria.  He overstayed and was arrested by the police on 15 October 2013.  He raised a non-refoulement claim on 30 October 2013 on the basis that a man called Dominic, his colleagues and the members of Boko Haram would try to kill him in Nigeria and there is a risk of harm from a man called Samuel and members of the National Congress Party (“NCP”) if he is to be returned to Sierra Leone.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  His application was late by about two months.  It was refused by the judge on 14 January 2020. 

5.  The applicant renewed his application to the Court of Appeal on 15 June 2020.  The application was dismissed by the Court Appeal on 28 January 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 27 April 2021, the applicant only stated that Dominic, Samuel and members of the NCP will kill him if he returns to Africa, without stating any particular grounds of appeal.

7.  In his written submissions, he reiterated his perceived future risk of harm upon his return to Africa and submitted that his mother was killed because of his problem.

Analysis and disposition

8.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  The Court of Appeal may extend the time for making the application under section 24(5).

9.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

10.  Section 22(1)(b) of the Ordinance 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.

11.  The applicant was late for more than two months in filing the Notice of Motion.  He explained in his affirmation that he was late as he did not have the appropriate means nor did he receive the decision on time.  In fact, the court notified the applicant by a letter dated 21 January 2021 that the judgment would be handed down on 28 January 2021 and that the judgment would be uploaded to the Judiciary website within the same day. The Court of Appeal’s judgment was also sent to the applicant’s address by post on 28 January 2021 which was later returned to the court by the post office. It is noted that the applicant’s address stated in his Notice of Motion and affirmation in support is different from the address he previously provided to the court in lodging the appeal.  However, he has not filed any notice of change of address for service with the court.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran[2018] HKCA 439, at §15). He does not have any good ground to justify the granting of extension of time for him to file the Notice of Motion.

12.  In any event, the applicant does not have any prospect of success in his intended appeal.  He has not put forward any ground to demonstrate that the Court of Appeal was wrong in rejecting his appeal. Moreover, he 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).

13.  For the above reasons, we refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 27 April 2021.