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

CACV 39/2025, [2025] HKCA 669

On Appeal from [2025] HKCFI 118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 39 OF 2025

(ON APPEAL FROM HCAL NO 2376 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 21 January 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 18 January 2019. In that decision, the Board acceded to the applicant’s withdrawal of his appeal to the Board against the decision of the Director of Immigration (“Director”) dated 24 October 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan born in 1976. He entered Hong Kong illegally from Mainland China on 21 October 2009 and was arrested by the police on the same day. On 23 October 2009, the applicant raised a torture claim to the Immigration Department. He subsequently submitted a written signification indicating his intention to apply for non-refoulement protection dated 4 October 2013. The applicant’s claim was made on the basis that if he returned to Pakistan, a member of the opposing political group of Pakistan Muslim League (Nawaz), named Yaseen, would harm or kill him due to a dispute and fight at the 2008 election. The factual background of the applicant’s claim was set out at [9.1] to [9.46] of the Director’s decision dated 24 October 2018.

3.  By notice of decision dated 11 January 2013, the Director assessed the applicant’s claim in relation to torture risk,[2] and it was determined it against him. On appeal, the Board confirmed the Director’s decision on 14 March 2013. The applicant did not apply for judicial review of this decision of the Board.

4.  By notice of decision dated 24 October 2018, the Director assessed the applicant’s claim in relation to the three remaining applicable risks and determined it against him. Those grounds were BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5]

5.  On 6 November 2018, the applicant appealed to the Board against the Director’s decision dated 24 October 2018. By letter dated 8 January 2019, however, the applicant applied to withdraw his appeal/petition against the Director’s decision. After consideration of the content of his letter, the Board was satisfied that the applicant’s request to withdraw his appeal had been freely made and that he understood the consequences of the withdrawal. The Board was also satisfied that there was good reason for the withdrawal, namely that the applicant considered it safe for him to return to his home country. Therefore, on 18 January 2019, the Board acceded to the applicant’s withdrawal of his appeal and directed that the Director’s decision of 24 October 2018 be confirmed.

6.  By way of letter dated 12 August 2019, the applicant requested the Board to re-open his case. On 13 August 2019, the Board repeated the content of its letter dated 18 January 2019 and informed the applicant that his request was not allowed.

The Judge’s decision in the court below

7.  On 16 August 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision dated 13 August 2019. In the Form 86, he said that his enemies posed a threat to his family and that he could not go back to his country. He further stated that he would provide further supporting documents and explain his problem to the court at the oral hearing. He also annexed the Board’s letter dated 13 August 2019 and his record of interview.

8.  The Judge considered the application on the basis of the documents and the applicant’s submissions made at the oral hearing held on 11 December 2024. On 21 January 2025, the Judge handed down his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [15] to [19] of the Judgment as follows:

“ 15. The question before the Court is whether the Board’s Decision is right, refusing to re-open his appeal, which he had withdrawn on 8 January 2019.

16. Before me, the applicant confirmed that he submitted his withdrawal voluntarily without any influence from anybody else. The reason for him to withdraw his appeal is that at that time, his father was suffering from heart problem and he wanted to go back to his country to see him as soon as possible. However, by the time he was told to attend the immigration office to sign the removal order, his father had already passed away. That is why he changed his mind and preferred to stay in Hong Kong.

17. Section ZTA of the Ordinance provides, inter alia:

“(1) A person who has filed a notice of appeal under section 37ZS (or section 37ZT if late filing is allowed) may, at any time before the Appeal Board determines the appeal, withdraw the appeal by filing a written notice with the Board.

(2) An appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Appeal Board and no further notice of appeal may be filed in relation to the decision.”

18. In Re Das Purnima Rani [2019] HKCA 669, Hon Yuen JA and Lisa Wong J, 13 June 2019, the Court of Appeal held:

“41…. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … … s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder…. ”

19. In the circumstances, the applicant fails to show that he has any realistic prospect of success in his intended judicial review of the Board’s Decision.”

Appeal to this Court

9.  On 21 January 2025, the applicant filed a Notice of Appeal against the Judge’s decision. His stated grounds of appeal were, essentially, that his life was still in danger and that he would submit further supporting documents before the oral hearing.

10.  The applicant lodged written submissions in which he raised some matters for the first time. He stated that his siblings have fled the country to avoid torture from their enemies. He attached a number of documents appearing to be translations of letters and affidavits from various persons regarding incidents of threats and harm to the applicant’s family members arising out of family disputes, without stating their relevance to his appeal. He also stated that he has a “wife” who is an “England citizen” and a “son” who has heart disease, without elaborating on the relevance of this to his appeal.

11.  At the oral hearing, the applicant was invited to explain the relevance of the documents attached to his written submissions to his appeal. He said that they were documents to show that his sister and younger brother were also in danger; he said that both had left Pakistan and were living elsewhere.

Discussion

12.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in an application for judicial review is not to provide 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.  As this Court pointed out in Re Das Purnima Rani [2019] HKCA 669 at [41], once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. The only option left to a claimant who has validly withdrawn his or her appeal is to make a fresh non-refoulement claim under section 37ZO(2) of the Immigration Ordinance (Cap 115) if the requirements of that section are met.

14.  In the present case, the applicant has not contested the validity of the withdrawal of his appeal and the Board’s acceptance of his withdrawal. In the hearing before the Judge, the applicant even confirmed that his withdrawal was submitted voluntarily without being influenced by anyone. In the circumstances, he has not provided any basis for invalidating the withdrawal of his appeal.

15.  Equally, the applicant has not identified any viable ground of appeal against the Judge’s decision. The facts of his wife’s citizenship and son’s medical condition do not affect the validity of the Judge’s decision. This is also the case with the alleged danger to the applicant’s siblings. As regards the documents which the applicant attached to his written submissions, we decline to admit these as new evidence, as the applicant has not satisfied the three conditions established in Ladd v Marshall [1954] 1 WLR 1489 for the admission of new evidence. In particular, the applicant fails to show that the evidence would or might, if believed, have a very important effect on the Judge's decision. The documents do not appear to relate to the events relied on originally for the non-refoulement claim, and instead relate to more recent family disputes. Even if they were admitted, they would not add anything of substance to the present appeal. There are also no exceptional circumstances in the present case to justify exercising our residual discretion to admit the article notwithstanding the non-satisfaction of the Ladd v Marshall conditions.

16.  For these reasons, there are no grounds to interfere with the Judge’s decision. Accordingly, the applicant’s appeal is dismissed.