Shagor v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 772/2019

[2023] HKCFI 272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 772 OF 2019

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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 30 September 2022 (the “Summons”) “to cancel 11/07/2022 Application” (the “Re-opening Application”).

2.By way of background, the Applicant filed an application by way of Form 86 on 19 March 2019 seeking leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 12 March 2019 (the “Decision”) refusing his appeal against the decision of the Director of Immigration in his Notice of Decision dated 5 July 2018 refusing his claim for non-refoulement protection. Then, on 11 July 2022, about three years and four months later, he applied by way of affirmation seeking to close his case, which this Court understands to withdraw his Leave Application (the “Withdrawal Application”). He gave no other reasons why he wished to close his case. To ensure that he made the Withdrawal Application deliberately and that he understood the consequence of the withdrawal, this Court gave him the following directions by letter dated 4 August 2022:

“The Applicant to file a statement with court within 14 days of the date of these directions stating that he understands that if his application to withdraw the application for leave to apply for judicial review is approved, the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dismissing his appeal against the decision of the Director of Immigration in the Notice of Decision remains in force.”

3.The Applicant did not respond. In view of the clear language in the directions, this Court was satisfied that he understood the consequence. After a further eighteen days from the time allowed for complying with the directions, this Court informed him that if no response is received from him by 8 September 2022, the Court will proceed to consider his Withdrawal Application and reminded him a second time of the consequence of the withdrawal. Again, he did not respond. In view of the two letters from this Court, the Applicant’s decision to withdraw is clearly an informed decision. There was nothing to suggest that the decision was made otherwise than voluntarily, deliberately or consciously. On 9 September 2022, having duly reviewed the Board’s Decision and all the papers and satisfied itself that the Decision had not been vitiated by errors of law, procedural unfairness or irrationality, this Court allowed his Withdrawal Application. Two months later, he made the present Re-opening Application.

THE LAW

4.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.

5.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.

DISCUSSION AND CONCLUSION

6.The Applicant’s reason for re-opening his Leave Application as stated in his Re-opening Application is that he does not want to return because he has problem in Bangladesh. Though he did not describe what his problem is, it could not have been anything else other than the alleged problem underlying his application for non-refoulement protection which had been considered by the Director and the Board. He is in fact challenging the Decision of the Board and more specifically its finding of fact as regards his fear and risk of harm on his return to Bangladesh. That is not permissible in an application for judicial review because the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The court will only scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[3].

7.The Applicant having made the Withdrawal Application and that application having been allowed, his Leave Application is no longer extant. It may not be re-opened. There is no application to be re-opened. The only way he could re-open his Leave Application is to show that his decision to make the Withdrawal Application was not a deliberate and informed decision in that it was the result of some vitiating elements such as mistake, misrepresentation and duress. The fact that he still has problem in the home state could not be a reason for setting aside the Order allowing his Withdrawal Application. As explained above, it may not even be a valid ground for applying for judicial review.

8.The Applicant’s intention as expressed in his Withdrawal Affirmation is unequivocal – he wanted to close his case. Impliedly, he no longer needs non-refoulement protection and wants to return to his home state. In his Re-opening Application, he merely said he wanted to close his case and nothing else. He has been reminded twice by the Court’s two letters about the consequence of his withdrawal, ie the Board’s Decision remains in force and he would liable to repatriation. He did not respond. There is nothing to suggest he had not received the two letters. In fact, it is not his case that he had not received the two letters. He clearly understood the content of the two letters which were written in simple language. He obviously knew that once the Withdrawal Application was approved, actions will be taken for his repatriation. If there was danger in his home state which makes it unsafe for him to return, he would have responded. His decision to withdraw his Leave Application was clearly an informed decision consciously or deliberately made with knowledge of the consequence. 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.

CONCLUSION

9.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