DANG HUU LUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 444/2024

[2021] HKCFI 1683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 444 OF 2024

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BETWEEN

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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 8 May 2025 (the “Summons”) to re-open his application for leave to apply for judicial review of the decision the Director of Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 1 March 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration refusing his request for non-refoulement protection (the “leave application”) and to seek extension of time “to appeal his case”.

2.  The procedural history is as follows. The Applicant filed his leave application on 8 May 2024. Before his leave application was heard, he applied by affirmation dated 3 April 2025 to withdraw it. In his affirmation, he said:

(1) it is now safe for him to return to his home country and he would like to return as soon as possible;

(2) he cancels his case out of his own free will; and

(3) he fully understands the consequences of his cancelling the Form 86, which consequences include: (i) bringing the application to an end even though its merits have not been determined, and (ii) the Decision of the Board shall remain in force.

Being satisfied what he asserted in his affirmation is true, the Court granted him leave to withdraw his leave application and issued the Order and Form CALL-1 to that effect dated 15 April 2025.

3.  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Court Judge Yee in HT (Hussain Tasawar) v Betty Kwan[2] that where it was sought to re-open an appeal which had been withdrawn, the tribunal should only consider whether or not the withdrawal was a valid one, ie whether it was the result of a deliberate and informed decision.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.

4.  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.

5.  On 8 May 2025, the Applicant filed the present Summons seeking to re-open his leave application and extension of time “to appeal his case”. His reason for re-opening is that “everything is not going as [he] thought”; he is still in danger; and he will face risk of being killed or harmed if he has to be repatriated. He gave no reason why on 3 April 2025 he said under oath that it was safe to return, but a month later, he said under oath it is now not safe to return. He mentioned nothing which could explain the alleged changes in circumstances. He offered no evidence in support of the changes or the reasons for the changes. He made no allegation of any vitiating elements which misled him into making his decision to withdraw. In fact, he said he withdrew out of his own free will. Furthermore, the decision to withdraw is an informed and deliberate decision. He well knew of the circumstances and the consequence of his withdrawal. With all these in his mind, he took the trouble of going to the office of the commissioner for Oaths to make an affirmation and file it with court. His decision to withdraw is an informed and deliberate decision not tainted by any vitiating elements. On the fact, the withdrawal was validly made. This Court is functus officio. The leave application may not be re-opened.

6.  As for his application for extension of time “to appeal his case”, in effect, this Court has not made any decision in respect of his case. This Court granted him leave to withdraw his leave application and allowed his leave application to be withdrawn as if it has not been filed. There is nothing for him to appeal.

Conclusion

7.  For the above reasons, the Applicant’s application to re-open his leave application is refused and application for extension of time to appeal is refused.