RE MOHAMMED MOINUDDIN

HCAL 498/2021

[2022] HKCFI 814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 498 OF 2021

________________________

________________________

________________________

D E C I S I O N

________________________

Procedural History

1.  The Applicant was from India. He overstayed after his visitor visa expired on 23/7/2014. He was arrested on 6/8/2014. On 8/8/2014, he lodged a non-refoulement claim. He claimed that he would be harmed or killed by his creditor or his gang if he was refouled. He was unable to repay a debt of 2 million INR[1].

2.  His claim was dismissed by the Director on 9/9/2016[2] and 7/8/2017[3]. His appeal was dismissed by the TCAB on 12/10/2017.

3.  On 10/8/2018, the Court of First Instance refused the leave application (HCAL 989/2017)  against the TCAB decision. The Court of Appeal also refused leave to appeal on 18/1/2019.

4.  On 21/4/2020, the Court of Final Appeal refused leave to appeal.

The subsequent claim

5.  On 18/5/2020 and 22/9/2020, the applicant made a subsequent claim. He alleged that his ex-wife had filed a report to the police in November 2018. She alleged that she was subject to cruel ill-treatment by the applicant, his father and brother after marriage from 28/10/2012 to 23/11/2018. They demanded for more dowry.

6.  The Director refused the subsequent claim on 30/3/2021. The Director noted that the allegation by his ex-wife occurred partly at the time when the applicant had left India. The applicant left India in July 2014. Even assuming the allegation was true, there was no evidence that the applicant would not face a fair trial. The Director found that there was no significant change of circumstances. Taking all circumstances into consideration, the subsequent claim would not have a realistic prospect of success.

7.  The applicant applied for leave to apply for judicial review (HCAL 498/2021)  of the Director’s decision on 9/4/2021. In his affirmation, the applicant had not specified any error in the Director’s decision.

8.  During the oral hearing on 23/8/2021, the applicant indicated that he just needed more time before returning to India. Deputy Judge Lung found that the applicant was in substance re-litigating his original claim. There was no error of law or procedural unfairness. It was rational. The Judge refused leave for judicial review. He also made a RPO as he thought that the applicant would likely proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong.[4]

9.  On 31/8/2021, Deputy Judge Lung made, among other things, the following orders:

(a)  The leave application for judicial review of the Director’s decision dated 30/3/2021 be dismissed (HCAL 498/2021); and

(b)  Unless with the leave of the Court of First Instance, the applicant be prohibited from commencing or continuing any legal proceedings relating to any non-refoulement claim in the High Court. (“Restricted Proceedings Order—RPO”)

10.  The applicant applied for leave to appeal against the RPO on 13/9/2021. He had apparently given notice to the Director on 6/9/2021 as required under paragraph 3 of the RPO. He had purportedly attached the notice of appeal and the order by Deputy Judge Lung to the Director.

11.  As of today, there is no written representation filed by the Director. This court deals with the application for leave on paper.

Basis of the intended appeal

12.  The gist of the grounds of appeal is set out as follows:

(a)  The Deputy Judge failed to carry out sufficient research and enquiry into the country of origin information (“COI”)  and failed to have regard to relevant and up-to-date COI in the consideration of his claim and to the COVID-19 virus pandemic worldwide condition. The Deputy Judge also failed to consider the political activities and the supporting documents;

(b)  The Deputy Judge failed to consider the updated statistics of COVID-19 cases and casualties in India as at 2/9/2021;

(c)  The Citizenships Amendment Act 2019 had denied citizenship to Muslims;

(d)  The Deputy Judge failed to consider that India was the most dangerous country in the pandemic which damaged the political and economic condition of India.

13.  Grounds (a), (b)  and (d)  should be considered together. In my view, the COVID-19 pandemic is not a ground which would entitle the applicant to non-refoulement protection. Likewise, the changes in political and economic situation in India due to the pandemic would not be relevant.

14.  As to the COI concerning the condition of India before the pandemic in the previous claim (HCAL 989/2017), the Director had considered the relevant COI in detail in the decision dated 9/9/2016.[5] The Director had taken this into consideration again when rejecting the subsequent claim.[6]

15.  As to ground (c)—the Citizenships Amendment Act 2019, it was a bare assertion by the applicant that Muslims would be deprived of their citizenship. He had never mentioned this in his affirmation in support of the leave application or during the oral hearing. The assertion is most unreliable.

16.  While there is no merit in the intended judicial review, the applicant has a right of appeal to the Court of Appeal against the RPO by virtue of paragraph 16, P.D.11.3. In the circumstances, the applicant may appeal against the RPO in the Court of Appeal direct.

17.  In case I am wrong above, I would have granted leave for the applicant to appeal to the Court of Appeal.