MOHAMMED MOINUDDIN v. DIRECTOR OF IMMIGRATION

CACV 355/2022

[2023] HKCA 26

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CACV NO 355 OF 2022

(ON APPEAL FROM HCAL NO 498 OF 2021)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Fung J (giving the Judgment of the Court)

1.  The Applicant Mohammed Moinuddin is appealing against the decision of DHCJ P Li dated 25 March 2022 in refusing to grant leave to issue judicial review proceedings pursuant to a Restricted Proceedings Order (RPO)  made by DHCJ KW Lung on 31 August 2021, whereas DHCJ P Li also held that the Applicant had a right of appeal to the Court of Appeal against the RPO, or at any rate leave to appeal would have been granted should it be necessary.

Background

2.  The Applicant is a non-refoulement claimant and a national of India from Kolkata, West Bengal.  He arrived in Hong Kong as a visitor on 9 July 2014 and overstayed, and was arrested by the police on 6 August 2014.

3.  There have been two stages in the proceedings since 2014.  In the first stage, the Applicant lodged a non-refoulement claim on 8 August  2014.  The claim was on the basis of risk of life or injury inflicted by his creditor by reason of non-repayment of a loan.

4.  The claim was considered by the Director of Immigration (Director)  pursuant to all relevant grounds of the persecution risk under Article  33 of the Refugee Convention 1951; violation of the right to life under Article 2 of the Hong Kong Bill of Rights (BOR2); torture or cruel, inhuman and degrading treatment or punishment (CIDTP)  under Article 3 of the Hong Kong Bill of Rights (BOR3); and torture claims under Part VIIC of the Immigration Ordinance (Cap. 115).

5.  On 9 September 2016, the non-refoulement claim was rejected by the Director,　and the appeal against the Director to the Torture Claims Appeal Board (Board)  was dismissed on 12 October 2017. 

6.  On 1 December  2017, the Applicant applied for leave to issue judicial review against the decisions of the Director and the Board (HCAL 989/2017), and leave was refused by DHCJ Bruno Chan on 10 August 2018.  The Applicant then appealed to the Court of Appeal and the appeal was also dismissed (CACV413/2018).  The Applicant’s application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 15 April 2019 and then by the Appeal Committee of the Court of Final Appeal on 21 April 2020.

7.  In the second stage, the Applicant requested to make a subsequent non-refoulement claim based on significant change in circumstances under s. 37ZO of the Immigration Ordinance by letters dated 18 May and 22 September 2020. The request was refused by the Director on 30 March 2021.

8.  In support of the subsequent claim, the Applicant submitted that there were false allegations by his ex-wife of ill-treatments by him and his family, and given the unfair judicial system in India, he might be liable to imprisonment for up to 3 years. 

9.  The Director noted that the Applicant had not made such allegation in the previous screening, and part of the allegations by the wife covered the period after the Applicant had left India.  Also, there was no indication that he would not face a fair investigation by the police and that he would not have a fair trial in India.  The alleged changes would not give the subsequent claim a realistic prospect of success.  Hence, his application was rejected by the Director on 30 March 2021 (Director’s 2021 Decision).

2^nd Leave Application for Judicial Appeal

10.  On 9 April 2021, the Applicant applied for leave for judicial review against the Director’s 2021 Decision (HCAL 498/2021).  The 2^nd leave application was dealt with by DHCJ KW Lung, who noted that the Applicant was a repeated non-refoulement claimant and considered that he had an intention to abuse the process by attempting to re-litigate his claim. Therefore, the Judge called on the Applicant to appear before him to show cause why the court should not make an RPO against him.

11.  At the hearing on 23 August 2021, the Applicant was asked by DCHJ KW Lung why he thought the Director was wrong, and he submitted that he did not think that the Director was wrong but he had some problems in his country and he would go home once the problems have been solved.  Upon being requested to show cause why an RPO should not be made against him, he only said that he needed more time and he would go back to his country later.

12.  On 31 August 2021, the 2^nd leave application was dismissed by DHCJ KW Lung.  The Judge found that the Director was entitled to reach his conclusion and the Applicant had not raised any valid challenge to the Director’s 2021 Decision.  Furthermore, the Judge was satisfied that if not restrained, it was likely that the Applicant would proceed with this and other proceedings for the sole purpose of remaining in Hong Kong.  Therefore, the Judge also made an RPO against the Applicant from “commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court, without leave of the Court of First Instance” for a period of 5 years from the date of the order.

13.  On 13 September 2021, the Applicant applied for leave under the RPO, and on 25 March 2022, DHCJ P Li decided there was no merits in seeking judicial review and refused leave, but indicated that the Applicant had a right of appeal to the Court of Appeal against the RPO, and in case leave to appeal against the RPO was required, he would have granted leave.

Grounds of Appeal

14.  In the Notice of Appeal filed on 31 August 2022, the Applicant stated the following grounds of appeal:

(1)  the Applicant will face hardship if he is to return back to his home country (Ground 1);

(2)  the Board relied on news which is simply hearsay or from source which is not officially recognized (Ground 2);

(3)  the Board relied upon outdated cases, resulting in its groundless speculations (Ground 3).

15.  In his written skeleton submissions, the Applicant stated the often seen template grounds that high standards of fairness are required in the determination of a torture claim on the part of the decision maker; and the decision maker is under a duty to act fairly.

16.  Since the Notice of Appeal is against the decision of DCHJ P Li, we shall approach the appeal on the basis of refusal of leave under the RPO.  In any event, the considerations would be the same if the Applicant were in effect appealing against the RPO pursuant to leave granted by DHCJ P Li, and/or the refusal to grant leave to issue the 2^nd judicial review.

Legal principles

17.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  The underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process: Wahyuni v Director of Immigration [2021] HKCFI 1991 at §9-10 per Chow JA (sitting as an additional judge of the Court of First Instance).

20.  In Siti Khotimah v Director of Immigration [2022] HKCA 327, the Court of Appeal considered the jurisdiction and the discretion concerning RPOs made by the Court of First Instance in non-refoulement proceedings.  It was held that the Court of First Instance may make an RPO or restricted application order under its inherent jurisdiction if the circumstances require. 

Analysis and Disposition

21.  As for the RPO, the Applicant has not put forward any grounds or submissions to impugn the judge’s exercise of discretion.  Looking at the lack of merits of the non-refoulement claim and the proceedings taken after the refusal of leave to appeal by the Appeal Committee of the Court of Final Appeal, the Judge was plainly right that the Applicant’s attempt to re-litigate his non-refoulement claim was an abuse of process to prolong his illegal stay in Hong Kong and a restrictive order should be made against him to prevent further abuse of the process of the court.

22.  Mr Tong, Government Counsel for the Putative Respondent, submitted that there was little difference between the present appeal and the case of Khan Md Omar v Director of Immigration [2022] HKCA 884, where a similar appeal against a RPO was dismissed for lack of merits.  We agree with him.

23.  The gist of Mr Tong’s submissions was explained to the Applicant at the appeal hearing, who had nothing to say in reply.

24.  As to the 2^nd judicial review, the Applicant’s appeal against the refusal of leave is devoid of merits.  Ground 1 is just a bare assertion without evidence in support.  Grounds 2 and 3 are totally irrelevant as the leave application was targeted at the Director’s 2021 Decision and has nothing to do with the decision of the Board.  Besides, the Applicant’s template grounds in the skeleton submissions cannot assist as the Applicant has failed to identify any particulars of unfairness in the judges’ decision.  In any case, the Applicant had made it clear to DHCJ KW Lung that he needed more time and would return to his home country later.

25.  The Applicant added at the appeal hearing that his girlfriend in Hong Kong is pregnant in Hong Kong.  However, this is not a relevant condition for the Court hearing an appeal on leave for judicial review.

26.  Hence, the appeal against the RPO as well as the 2^nd judicial review shall be dismissed.

27.  The RPO granted by DHCJ Lung was made before the terms of the RPO were tightened up in the Court of Appeal judgment in Siti Khotinmah op cit.  Relying on Siti Khotinmah, Mr Tong, invited the Court to vary the terms of the RPO to prevent the abuse of the appellate process by the applicant: 

(1)  Paragraph (1)  shall be revised to read:

“The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court, and any appeal, including this Order, without leave of the Court of First Instance.”

(2)  A new paragraph (9A)  be added as follows:

“No appeal shall lie from a decision of the Judge granting or refusing leave under this Order, unless leave to appeal has been granted by the Judge.”

28.  The Applicant also had nothing to add in reply.

29.  As Mr Tong's suggestion is in line with the previous decision of the Court of Appeal, and to prevent the Applicant from bringing further unmeritorious appeals, the terms of the RPO will be varied accordingly.

Costs

30.  Mr Tong contends that the appeal against the RPO is devoid of merits and hence should be dismissed with costs on indemnity basis.

31.  The Applicant simply submitted that he was not able to pay.

32.  DHCJ P Li took the view that the Applicant has a right to appeal against the RPO and if he were wrong, he would have granted leave to appeal. It is not entirely clear from his decision whether he was granting leave to appeal against the RPO only or also in respect of his decision to refuse leave to apply for judicial review (as required by the RPO).

33.  In light of the above, although the appeal is unmeritorious, the appeal should not be characterized as an abuse of process to warrant indemnity costs.

34.  As the putative respondent is successful in opposing the appeal, costs is ordered in favour of the putative respondent but on party and party basis.