Mehmood Asif v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1765/2018

[2020] HKCFI 967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1765 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a Pakistani national. He arrived in Hong Kong on 25 January 2016 through China illegally. He surrendered to the Immigration Department on 27 January 2016. He lodged his non-refoulement claim on 6 July 2016.

3.His reason for his application is that if he returned to Pakistan, he would have a life threatening risk because of a land dispute with his uncle, Abdul Malik.

The Director’s Decision

4.The Director considered his application in relation to the following risks:

a.     torture risk under section 37U of the Immigration Ordinance, Cap 115 (“the Ordinance”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5.By Notice of Decision dated 5 February 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board.

7.On 26 March 2018, he wrote to the Board to withdraw his appeal because he believed that his problem had been solved. In his letter, he said that his application was made freely and he understood that the consequence of his withdrawal was that his appeal or petition could not be re-opened after the withdrawal.

8.By letter dated 13 April 2018, the Board acknowledged receipt of the applicant’s letter and directed that his appeal/petition was withdrawn. It also confirmed the Director’s Decision.

9.By letter dated 20 July 2018, the applicant applied to the Board to re-open his appeal.

10.By letter dated 30 July 2018, the Board replied to his letter, saying that the Board had given direction that his appeal/petition was withdrawn and that his appeal/petition had been disposed of and no further action would be taken by the Board. The Board refused his application (“the Board’s Decision”). It is this decision that the applicant applies for leave to apply for judicial review.

Application for leave to apply for judicial review

11.By Form 86 dated 28 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

12.In his affirmation in support of his application dated 28 August 2018, the applicant admitted that he had made the application for withdrawal of his appeal/petition. He asked for re-opening of his appeal/petition.

DISCUSSION

The Director’s Decision

13.In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already dealt with the appeal and made its Decisions.

14.The applicant has not set out any exceptional circumstances.

15.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

16.The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

17.The applicant appeared before me. He confirmed that he had applied for withdrawal of his appeal/petition to the Board and now he wanted to reopen his case.

18.As the claimant applies to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office to withdraw the appeal and the Board accepts it, the Board becomes functus officio and it has no further power to re-open the claimant’s appealas decided in Hussain Tasawar v Betty Kwan, Adjudicator of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office and Director of the Immigration as interested party, HCAL 20/2015, 17 March 2017 §§40 and 41:

“40. Therefore, though the appeal of HT has not been determined on its merits, it was disposed of by his withdrawal of the same and it follows that HT’s claim, which was rejected at the first tier, is deemed to be finally determined within the meaning of section 37V(2).

41.     Further, once the withdrawal of HT’s appeal was accepted by the Letter, his appeal has not gone into a state of suspended animation but simply ceased to exist. Section 16 of Schedule 1A is inapplicable as the appeal is no longer pending to be heard and determined by the Board.”

CONCLUSION

19.The Board was correct to refuse his application to reopen his appeal. Accordingly, I dismiss the applicant’s application for leave to apply for judicial review of the Board’s Decisions.

Dated the 28^th day of May 2020

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1