Read the full judgment text of CACV 85/2019 on BabelCite. This Court of Appeal judgment was delivered on 13 June 2019 before Yuen JA and Lisa Wong J.
Civil appeal – judicial review – non-refoulement claim – Torture Claims Appeal Board – functus officio – withdrawal of appeal – reinstatement – nullity principle – delay – Immigration Ordinance (Cap 115) – Bangladeshi national's non-refoulement claim based on fear of harm from her husband's family in Bangladesh, who disapproved of her Hindu background and her secret marriage to their son – claim rejected by Director of Immigration on grounds of no real risk, availability of state protection and viable internal relocation – applicant withdrew her appeal to the Board by letter dated 7 July 2017 and the Board dismissed it by letter dated 10 July 2017 – applicant then requested the Board to re-open the appeal, relying on HT (Hussain Tasawar) v Betty Kwan – Board refused, holding itself functus officio – applicant filed Form 86 in HCAL 941/2018 out of time by at least 6 months seeking leave to apply for judicial review – Deputy High Court Judge K W Lung refused leave on 8 February 2019, holding there was nothing for the applicant to complain about because the Board had dismissed the appeal upon her own withdrawal – applicant appealed to the Court of Appeal – whether the Board was functus officio upon acceptance of a valid withdrawal and had no jurisdiction to reinstate the appeal – held that once the Board dismisses an appeal upon a valid withdrawal (being a deliberate and informed decision), the appeal is no longer extant and the Board is functus officio with no jurisdiction to take any further step regarding the appeal, and the only remedy is a fresh non-refoulement claim under s 37ZO(2) of the Immigration Ordinance (Cap 115) – whether the applicant's withdrawal of her appeal was a deliberate and informed decision – held that, on her own letter dated 17 August 2017 and her affirmation in support of the Form 86, she made a deliberate and informed decision to withdraw, and her subsequent change of mind could not invalidate the earlier withdrawal, as she failed to identify any new information or explain why she could not have obtained it before – court followed HT (Hussain Tasawar) v Betty Kwan, approved in Ali Usman [2018] HKCA 955, and Ap v Secretary of State for the Home Department [2008] INLR, and rejected adoption of the nullity principle for non-refoulement claims, holding that the Board is a creature of statute with no inherent jurisdiction and the powers under article 48(13) of the Basic Law do not include inherent jurisdiction – whether the Judge erred in refusing leave – held that although the Judge might not have addressed the real issue, the outcome would have been the same – delay in seeking leave for judicial review not decided, as it was unnecessary in light of the substantive conclusion, though the court observed that the six-month delay, in the absence of satisfactory evidence, would in itself have been sufficient to dismiss the application – appeal dismissed.
Legal issues: Whether the Board was functus officio and had no jurisdiction to reinstate a withdrawn appeal · Whether the applicant's withdrawal of her appeal was a valid, deliberate and informed decision
Outcome: Appeal dismissed
Cited by 102 cases · Cites 5 cases