Re Moshsin Ali

HCAL 2214/2019

[2022] HKCFI 1685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2214 OF 2019

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Before:  Deputy High Court Judge To in Chambers

Date of Decision:  8 June 2022

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D E C I S I O N

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Introduction

1.This is the Applicant’s application by summons filed on 26 April 2022 (the “Summons”) to re-open his application for leave to apply for judicial review of the decision the Director of Immigration (the “Director”) dated 3 July 2019 (the “Decision”) refusing his request for making a subsequent claim for non-refoulement protection under section 37ZO of the Immigration Ordinance.

2.Previously, the Applicant had lodged a torture claim by way of a written representation dated 20 December 2007. He lodged a Torture Claim Form dated 14 February 2014 via the Duty Lawyer Office. Upon the commencement of the Unified Screening Mechanism (“USM”), his claim was treated as a non-refoulement claim (the “Previous Claim”) and was assessed under the USM. He filed a Supplemental Claim Form dated 24 March 2014 and attended five screening interviews between May and November 2014. On 28 November 2014, the Director issued a notice of decision dismissing his claim (the “1^st Notice”). His appeal against the decision in the 1^st Notice was dismissed by the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 15 March 2017 (the “2017 Decision”).

3.Then, by his letter dated 12 April 2017, the Director invited the Applicant to submit additional facts relevant to his non-refoulement claim on all applicable grounds including violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 Risk”) within 14 days, in case he might have omitted them due to any misunderstanding. No response was received from the Applicant. On 31 May 2017, the Director issued a notice of further decision dismissing his claim (the “2^nd Notice”). The Applicant filed a petition to the Board against the Director’s decision in the 2^nd Notice. His petition was dismissed by the Board’s decision dated 15 March 2019 (the “2019 Decision”).

4.The Applicant never sought to challenge the 2017 Decision or the 2019 Decision by seeking leave to apply for judicial review of those decisions. Accordingly, those decisions became final.

5.Instead, he made a request by two letters dated 10 May and 19 June 2019 pursuant to section 37ZO for making a subsequent claim. After considering his two letters, the immigration officer was of the opinion that the Applicant had failed to provide sufficient evidence in writing to satisfy him that (a) there has been a significant change of circumstances since the Previous Claim was finally determined or withdrawn; and (b) the change, when taken together with the material previously submitted in support of the Previous Claim, would give the subsequent claim a realistic prospect of success. By his notice of decision dated 3 July 2019 (the “3^rd Notice”), the Director refused the Applicant’s request for making a subsequent claim. This decision is not appealable to the Board.

6.Then, on 2 August 2019, the Applicant filed his application by Form 86 for leave to apply for judicial review of the Director’s decision in the 3^rd Notice (the “Leave Application”). Before his application came to be determined by this Court, the Applicant applied by affirmation dated 17 June 2021 (the “Withdrawal Affirmation”) to withdraw his Leave Application (the “Withdrawal Application”). In the Withdrawal Affirmation, the Applicant averred:

“Affirmation for withdraw my claim as my problem in my country is solved. I want to return home as soon as possible.”

7.On 26 April 2022, about ten months later, the Applicant applied by Summons to re-open his Leave Application on the ground that his problem is not solved. He repeated the same in his supporting affirmation filed on the same day (the “Supporting Affirmation”).

8.This Court took the view that his Summons and Supporting Affirmation failed to provide any basis for impugning a prima facie valid withdrawal. In order to ascertain if he has a proper basis in support of this application, directions were given on 3 May 2022 to the Applicant to file an affirmation or a statement explaining:

(a)  why he applied to withdraw his Leave Application on 17 June 2021;

(b)  why he did not return to his home country after his Withdrawal Application was granted on 24 June 2021;

(c)  when did he realize his problem in his home country was not solved; and

(d)  the reason for his delay in filing this Summons.

9.In his statement dated 10 May 2022 (the “Statement”), the Applicant said:

“My family told me my problem has solved. So I apply to return home. By this time immigration tring (sic) to send me. But they failed because sending process is very critical. On the other hand my family asked me to not return as the enemy are waiting to kill me. So I changed my mind.”

The law

10.In Ali Usman[1], the Court of Appeal approved the judgment of Deputy High Court Judge Yee in HT (Hussain Tasawar) v Betty Kwan[2] that where it was sought to re-open an appeal which had been withdrawn, the tribunal should only consider whether or not the withdrawal was a valid one – ie, whether it was the result of a deliberate and informed decision. Where this was not the case, the withdrawal would be a nullity, and the appeal would remain extant and may be re-opened.

11.Ali Usman and HT are cases involving the re-opening of an appeal before the Board (as an administrative tribunal) against the decision of the Director (representing an administrative body) refusing a non-refoulement claim. The present case is about re-opening of an application before the court for leave to apply for judicial review of a decision of an administrative body. Despite the differences in the subject matter of the application or appeal and in the identity of the decision makers, I think the principles decided in these cases are equally applicable to the present case. As a matter of logic, once an application or an appeal has been validly withdrawn and hence is dismissed or no longer extant, the court which previously had jurisdiction over the application or appeal becomes functus officio. It has no jurisdiction or there is no subject matter over which it may exercise its jurisdiction. Hence, whether the court may re-open an application or an appeal which had been withdrawn depends on whether the application or appeal had been validly withdrawn, ie as a result of a conscious or deliberate and informed decision. If it had, the court becomes functus officio and has no jurisdiction to re-open. If it had not, the withdrawal was a nullity, the application or appeal remains extant and may be re-opened.

12.It was with the above legal principles in mind that the directions were issued to the Applicant to enable him to perfect his application.

Whether the withdrawal was valid

13.There are four documents before the Court evidencing the intention of the Applicant:

(1)  his Withdrawal Affirmation dated 17 June 2021 stating his intention to withdraw the Leave Application because his problem in his home country is solved;

(2)  his Summons dated 26 April 2022 stating his intention to re-open his Leave Application because his problem is not solved;

(3)  his Supporting Affirmation dated 26 April 2022 repeating the same; and

(4)  his Statement dated 10 May 2022 explaining the reasons for re-opening his Leave Application and the surrounding circumstances.

14.The Applicant’s intention as expressed in his Withdrawal Affirmation is unequivocal - his problem is solved. He no longer needs non-refoulement protection and wants to return home as soon as possible. As explained in his Statement, he was told by his family that his problem was solved. He must have acted upon what he was told by his family and which he considered as coming from a credible source of information. That was an informed decision. He must have acted on it and made a conscious or deliberate decision to withdraw the application. There is nothing to suggest there was any misunderstanding of any fact which led to his decision to withdraw the Leave Application. There is nothing to suggest that his mind did not accompany his Withdrawal Application or that he has no mental capacity to make that application or the Withdrawal Affirmation.

15.In his Summons and Supporting Affirmation, the Applicant said that his problem is not solved and nothing else. He made no allegation about being misled by his family or that he misunderstood what his family had told him or that he was suffering a mental condition or under stress or acting under other vitiating circumstances at the time he applied to withdraw his Leave Application. These two documents indirectly supported the inference that his decision to withdraw was an informed decision voluntarily, deliberately or consciously made.

16.The Applicant was invited by my directions to provide further information to perfect his application to re-open. The overall thrust of his reason for re-opening his application as stated in his Statement is that his family had previously told him that his problem was solved and at an unknown time later told him that it has not. He gave little particulars except that his family told him that his enemies are waiting to kill him. However, it is not his case that when he acted on what he was first told by his family, he had any misunderstanding as to what his family had told him and still less that he did not intend to withdraw the Leave Application. When he made his Withdrawal Application, his intention was to withdraw that application.

17.For ten months since allowing his Withdrawal Application, he neither returned nor was he removed back to his home country. His explanation is wholly lacking in particulars. He made a vague suggestion that the Immigration Department failed to repatriate him because the “process is critical”. He avoided giving particulars as to when the repatriation process started, other than saying “by this time”. He avoided giving particulars as to when he learned that his problem was not solved and avoided accounting for the delay between his learning that his problem was not solved and the time he filed the Summons. While no adverse inference is being drawn for his failure, his explanation does not reveal any vitiating elements in his decision to withdraw his Leave Application.

18.His confirmation in his Withdrawal Affirmation that his problem in his home country is solved is consistent with the Director’s finding that (a) there has been no significant change of circumstances since the Previous Claim was finally determined or withdrawn; and (b) the change, when taken together with the material previously submitted in support of the Previous Claim, would give the subsequent claim a realistic prospect of success; which was the basis for the Director’s refusing his request for make a subsequent claim. His decision to withdraw his Leave Application appears to be an informed decision as he was satisfied that his problem in his home country had been solved. It also appears to have been made voluntarily, deliberately or consciously. It was on this basis that the Court allowed his application to withdraw his Leave Application. His Summons, Supporting Affirmation and Statement lend weight to the impression as conveyed by his Withdrawal Affirmation and to the Court’s conclusion that his decision to withdraw the Leave Application was an informed decision voluntarily, deliberately or consciously made. Hence, the order allowing his Withdrawal Application is regular and valid.

Conclusion

19.For the above reasons, this Court is functus officio. Accordingly, the Applicant’s application to re-open his Leave Application is refused.

The Applicant is not represented