MOHAMMED MOINUDDIN v. DIRECTOR OF IMMIGRATION

CACV 355/2022

[2023] HKCA 621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 355 OF 2022

(ON APPEAL FROM HCAL NO 498 OF 2021)

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J U D G M E N T

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Hon Fung J (giving the Judgment of the Court):

Background

1.  On 13 January 2023, the Court of Appeal rejected the applicant’s appeal against the restricted proceedings order (“RPO”)  and the refusal of leave to bring the 2^nd judicial review concerning the applicant’s non-refoulement claim.  The Court of Appeal also varied the terms of the RPO to prevent the abuse of the appellate process by the applicant.

2.  The applicant filed a Notice of Motion on 1 February 2023 to seek leave to appeal to the Court of Final Appeal.

3.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the notice of motion shall be determined on paper without an oral hearing.  The applicant lodged written submissions on 13 February 2023.  Having considered the written submissions and the papers, it is considered appropriate to determine this application on paper.

Grounds of Appeal

4.  The applicant stated the following as his grounds in the Notice of Motion filed on 1 February 2023:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] Information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

5.  His written submissions may be summarized as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis

6.  The applicant is restricted by the RPO which states that “[t]he 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 [RPO], without leave of the Court of First Instance”.  Therefore, as pointed out by the Department of Justice acting for the Director in the letter dated 2 March 2023[1], this application is restricted by the RPO[2]. As the applicant has not obtained leave from the Court of First Instance for seeking leave to appeal to the Court of Final Appeal, he is not entitled to bring the present application.  This application should be dismissed accordingly.

7.  Even if I am wrong in the sense that the RPO is not wide enough to cover an application for leave to appeal against the variation of the RPO by the Court of Appeal, his application is without merits in any event.  His grounds and submissions are not supported by evidence.  In particular, the applicant failed to show that the court is wrong in rejecting his appeal against the RPO and the refusal of leave to bring judicial review.  He did not put forward any grounds concerning the variation of the terms of the RPO.  He also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination as required under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  There is also no basis for granting leave on the “or otherwise” limb under section 22(1)(b).

8.  For the above reasons, the Notice of Motion filed on 1 February 2023 should be dismissed.