SHAGOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 44/2023, [2023] HKCA 824

On appeal from [2023] HKCFI 272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 44 OF 2023

(ON APPEAL FROM HCAL NO 772 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 8 February 2023, Deputy High Court Judge To refused the applicant’s application (“the Judge’s Decision”) to re-open his leave application to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 12 March 2019 (“Decision”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the Judge’s Decision on 14 February 2023.

2.  The applicant is a national of Bangladesh. He is 49 years old. He entered Hong Kong as a visitor on 19 August 2004 but overstayed. He was subsequently arrested by the police on 16 August 2006. The applicant was repatriated to Bangladesh on 30 August 2006. He allegedly sneaked into Hong Kong illegally on 5 December 2015 and surrendered to the Immigration Department on 28 December 2015. He lodged a non-refoulement claim on 7 September 2016 on the basis that he would be harmed or killed by members of the Awami League (“AL”).

The Director’s decision

3.  By a Notice of Decision dated 5 July 2018 (“Notice of Decision”), the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director held that the applicant’s alleged risk of harm from the AL was unlikely to materialize given he has not encountered any problems with the AL since 2015 and he was able to successfully depart from Bangladesh. The Director further held the applicant’s allegation that the members of the AL were attempting to kill him due to an incident which caused his father’s death to be far-fetched and unsupported by evidence. On the basis of objective and credible country of origin information, the Director found the availability of state protection and internal relocation alternatives further lowered or negated the applicant’s perceived risk.

The Board’s decision

5.  The applicant appealed against the Director’s decision to the Board. An oral hearing was held on 24 January 2019 and the applicant testified. Upon considering the totality of the evidence, the Board did not accept the applicant’s claim that he was pursued by the AL and/or he was harmed anywhere in Bangladesh. Having failed to establish the factual basis of his claim, the applicant’s appeal was dismissed by the Board on 12 March 2019 under all applicable grounds and the Director’s Notice of Decision dated 5 July 2018 was affirmed.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 19 March 2019 to seek leave to apply for judicial review against the Board’s Decision. On 11 July 2022, the applicant filed an ex-parte application by way of affirmation to withdraw his leave application for judicial review, which was granted pursuant to the order of the judge dated 9 September 2022. However, the applicant filed a summons on 30 September 2022 seeking to re-open his leave application for judicial review, stating that he does not want to return to Bangladesh because he has problem in his home country.

The Judge’s Decision

7.  The judge held that once an application has been validly withdrawn and is dismissed or no longer extant, the court which previously had jurisdiction over the application becomes functus officio and has no jurisdiction to re-open. Hence, whether the Court may re-open an application which had been withdrawn depends on whether the application had been validly withdrawn.

8.  The judge noted that the applicant gave no substantive reason in July 2022 why he wanted to withdraw the leave application for judicial review. To ensure that he understood the consequence of withdrawal, the Court wrote to him on 4 August 2022 and 5 September 2022 seeking confirmation that he understood the consequence of his withdrawal application. These letters were not returned by the post office, and no response was given by the applicant to these letters.

9.  In the circumstances, the judge was satisfied that the applicant made an informed decision to withdraw and there was nothing to suggest that his withdrawal application was made otherwise than voluntarily, deliberately or consciously. He held that the withdrawal application was validly made. And as his withdrawal application was granted on 9 September 2022, the application for leave to apply for judicial review is no longer extant. He could not re-open the leave application.

10.  The judge concluded that the Court is functus officio in this situation. He therefore refused the applicant’s summons to re-open his leave application.

Grounds of appeal

11.  In the Notice of Appeal filed on 14 February 2023, the applicant did not provide any grounds of appeal save to state that the Court did not consider his case and he wished to re-open his non-refoulement claim. As for the written submissions, the applicant simply reiterated the problems he would face in Bangladesh if he is refouled.

Analysis and disposition

12.  There is no basis to disturb the finding that the withdrawal application was validly made or to impugn the decision granting the application to withdraw the application for leave to seek judicial review. The applicant has not provided any ground to set aside the withdrawal validly made. In the absence of any provision allowing the applicant to re-open an application for leave to seek judicial review that is no longer extant, the judge is correct in holding that the Court is functus officio and the summons to re-open should be dismissed.

13.  In any event, the applicant has failed to give any particulars, elaboration or evidence in support of his intended application for judicial review. In his submissions, apart from bare assertions, he merely repeated the background of his case and recited legal principles and cases without explanation as to their relevance. There is no or no credible evidence to refute the Board’s findings based on its assessment of the evidence and the country of origin information materials and risk of harm, state protection and viability of internal relocation.

14.  The legal principles regarding an appeal in a non‑refoulement case are well-settled as set out by this court in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. The role of the court in a judicial review is not a further avenue of appeal. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board or that the decision of the Board was plainly wrong.

15.  The applicant has failed to put forward any grounds to indicate any error by the Board, and there is no basis to challenge the Board’s decision. There is no or no reasonable prospect of success in the proposed application for judicial review.

16.  We are of the view that the appeal is devoid of merits. We therefore dismiss the appeal.