Re Khan Azmat Ullah

HCAL 668/2020

[2022] HKCFI 2448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 668 OF 2020

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Before:  Deputy High Court Judge To in Chambers

Date of Decision:  12 August 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 affirmation filed on 24 May 2022 (the “Application” or “supporting affirmation” as appropriate) to re-open his application for leave to apply for judicial review of the decision of Deputy High Court Judge Li (“DHCJ Li”) dated 11 February 2022 (the “Order”) allowing his application to withdraw (the “withdrawal application” or “withdrawal affirmation” as appropriate) his application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 2 April 2020 (the “leave application” or “leave affirmation” as appropriate).

2.By way of background, the Applicant claimed to be a member of the Youth Wing of the Pakistan People’s Party (“PPP”) and his father was the president of the PPP in Punjab province. PPP and Pakistan Muslim League (Noon) (“PMLN”) are the two major and antagonizing political parties in Pakistan. There were often fights and arguments between the two parties when PMLN was in power. The Applicant claimed that his father was murdered by members of PMLN and he was asked to replace his father in the coming election. As a result, he attracted attention of the PMLN. He was assaulted and threatened with death by members of PMLN. He fled Pakistan on 20 May 2016 and sneaked into Hong Kong on 21 June 2016. He raised a non-refoulement claim, but his claim was rejected by the Director of Immigration (the “Director”) via his notice of decision dated 18 July 2018. He appealed to the Board. The Board rejected the factual basis of his claim. It did not accept that the Applicant would face any real risk of proscribed forms of harm, if refouled to Pakistan and dismissed his appeal.

3.On 16 April 2020, the Applicant lodged the leave application by way of Form 86 seeking leave to apply for judicial review of the Board’s Decision. As can be gleaned from his leave affirmation, his ground for judicial review is that the Board erred in not believing him; not accepting that he had been mentally and physically tortured; and that his enemies wanted to kill him as they had killed his father.

4.On 31 January 2022, the Applicant filed the withdrawal affirmation seeking to close his case because he wanted to go back to his home country. By his Order, DHCJ Li allowed his withdrawal application on 11 February 2022 and ordered that the leave application be withdrawn.

5.Then, on 24 May 2022, the Applicant filed the present Application with a supporting affirmation seeking to re-open his leave application on the ground that his problem was not solved and he could not return to his home country. He gave no explanation why he could return in February but could not return in May. This Court took the view that his supporting affirmation failed to provide any basis for re-opening the leave application which on the face had been validly withdrawn. In order to assist him in presenting the proper basis in support of this application, directions were given on 23 June 2022 to the Applicant to file an affirmation with supporting evidence, if any, in support of his Application, including in particular:

(a)  why he applied to withdraw his leave application on 31 January 2022;

(b)  why he did not return to his home country after his withdrawal application was granted on 11 February 2022;

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

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

6.The Applicant did not file an affirmation as directed, but lodged a written submission dated 7 July 2022 (the “Submission”) in purported compliance with the directions.

The law

7.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.

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

Whether the withdrawal was valid

9.There are three documents before the Court evidencing the intention of the Applicant when he made the withdrawal application:

(1)  his withdrawal affirmation dated 31 January 2022;

(2)  his supporting affirmation dated 24 May 2022; and

(3)  his Submission dated 7 July 2022.

10.The Applicant’s intention as expressed in his withdrawal affirmation is unequivocal – he wanted to close his case, ie to withdraw his leave application. His underlying reason was he wanted to return to his home country, Pakistan. He did not say that his problem at home was solved. The reasonable inference is that he no longer need non-refoulement protection or, at least, that the risk of harm which he feared was one which he could withstand.

11.In his supporting affirmation made four months later, he said he wished to re-open his leave application because his problem in his home country has not been solved. That statement suggests that the underlying reason for his withdrawal application was that his problem at home was solved or he thought it had been solved.

12.In point (c) of his Submission, he said:

“I WITH drawl (sic) my judicial review because the Pakistan Tehreek Insaf government were going very well by the help of ex prime minister of Pakistan but suddenly government changed and once again the PMLN government came in power all over Pakistan and now Shabaz Sharif is the current pm of Pakistan.”

The Applicant’s non-refoulement claim is based on his fear of harm from members of the PMLN whom he claimed had also murdered his father. The first half of the first sentence in the above passage suggests that when he applied to withdraw the leave application, he did so because the conditions in Pakistan was safe under the Tehreek Insaf government. His problem was solved. The second part of that sentence suggests that there was a sudden change of circumstances when PMLN came into power with Shabaz Sharif appointed as prime minister.

13.In point (ci) of his submission, the Applicant repeated that he fled Pakistan out of his fear for PMLN and repeated his allegation that PMLN was responsible for the murder of his father when his father was the president of the PPP in the province of Punjab. He said that when Imran Khan became the prime minister he was hopeful because Imran Khan took action against corruption and against the ex prime minister, Nawaz Sharif and Shabaz Sharif (presumably, before becoming the current prime minister). However, because of the intervention of the army, Imran Khan was forced to step down and a “criminal person” is now in command (presumably referring to Shabaz Sharif as the current prime minister). The Applicant therefore said it was not possible for him to return to Pakistan.

14.The Applicant’s claim of change in circumstances with PMLN coming into power etc are all bare assertions. It was not supported by any credible country of origin information. It could not be verified by this Court and it is not the function of this Court to make finding of facts of this nature. For the purpose of this application, it suffices to point out that from the withdrawal affirmation, the supporting affirmation and the Submission, it is amply clear that the Applicant knew what he was doing when he made the withdrawal application; that he did intend to withdraw his leave application and to return to Pakistan. As explained in his Submission, he thought it was safe to return because the Tehreek Insaf government was operating well. He had no fear for his safety under that government. His problem was solved. 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. The decision to withdraw the leave application was an informed decision made voluntarily. The withdrawal is valid. This Court is functus officio. It has no jurisdiction to set aside the withdrawal.

Conclusion

15.Accordingly, the Applicant’s application to re-open his leave application is refused.

The Applicant is not represented