RE ALI USMAN

CACV 70/2018

[2018] HKCA 955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 70 OF 2018

(ON APPEAL FROM HCAL 682 OF 2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This was an appeal against the decision of Deputy High Court Judge Woodcock dated 16 March 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Pakistan. He entered Hong Kong illegally on 13 August 2009, and was arrested by the police on the same day. On 15 August 2009, he lodged a torture claim, which was treated as a non-refoulement claim after the commencement of the unified screening mechanism on 3 March 2014. The claim was based on an alleged threat from a gang led by one Zeshan, with whom the applicant claimed he had an altercation at their school in March 2009, following which Zeshan and his gang attacked and fired shots at the applicant.

2.  The Director decided against the claims on 10 April 2015.  His decision (“the Director’s Decision”) covered BOR 3 risk, persecution risk and torture risk.  It did not, however, cover BOR 2 risk.

3.  On 20 April 2015, the applicant lodged an appeal and petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).  His appeal was fixed for a hearing on 4 May 2016. However, just under six months before the hearing was due to take place, on 27 November 2015, the applicant sent a letter to the Board withdrawing his appeal, stating that it was safe for him to return to Pakistan.  As a result, on 30 November 2015, the Board informed the applicant that his appeal and petition were dismissed and the Director’s Decision was confirmed, and that no further action would be taken in respect of his appeal and petition. 

4.  Notwithstanding the dismissal of his appeal and petition following their withdrawal, the applicant did not leave Hong Kong, and was not removed. 

5.  On 15 March 2016, the applicant wrote to the Immigration Department, stating that his application for non-refoulement protection had been refused, but that conditions in Pakistan had not changed and he stilled feared for his life.  He requested that a new case should be opened for him.  The Immigration Department responded by letter dated 21 March 2016, informing the applicant that his earlier claim had been refused, and that his appeal to the Board having been withdrawn, the Board had directed that it be dismissed, so that his claim had been rejected and finally determined, and no further action would be taken in relation to it. 

6.  On 28 April 2016, the applicant wrote again to the Immigration Department, this time stating that he had earlier applied to go back to Pakistan and that his case had then been closed, but that he wished to apply for a new case as his life would still be in danger in Pakistan.  In this letter, he expressly stated that he wished to apply for protection on the BOR 2 ground.  The Immigration Department sent a holding reply on 4 May 2016, but only responded substantively on 3 July 2017, informing the applicant that as his appeal/petition had been disposed of and finally determined by the Board on 30 November 2015, no further action would be taken in respect of his claim.

7.  Thereafter, on 20 July 2017, the applicant wrote two letters to the Immigration Department.  The first said he had changed his address, and had come to collect a letter from the department which he had not received earlier, which he became aware of through an immigration officer advising him that his BOR 2 claim had been closed.  The second stated that he wished to return to Pakistan immediately, and wanted to cancel all his non-refoulement claims.  The following day, the Immigration Department re-sent a copy of the letter of 3 July 2017 to his new address.  On 25 July 2017, the applicant sent an email to the Immigration Department stating “Re-apply appeal/petition for non-refoulement claim”, and asking for his case to be reopened before the Board as it was not safe for him to return to Pakistan. The Immigration Department responded substantively by a letter dated 26 July 2017, to the same effect as the letter of 3 July 2017, but this time suggesting that the applicant should contact the Board in case of any queries.  This prompted a further l5 page letter from the applicant to the Immigration Department on 21 August 2017, seeking the reinstatement of his claim, to which the Immigration Department responded on 22 August 2017, in the same terms as its letter of 26 July 2017.

8.  On 4 September 2017, the applicant wrote to the Board requesting it to reinstate his appeal/petition.  On 5 September 2017, the Board informed the applicant that the Board had no power to reinstate his appeal because his appeal had been finally determined.

9.  On 26 September 2017, the applicant filed his Form 86 to initiate his application for judicial review.  As appears from the Form 86, the intended judicial review sought to review the Director’s Decision of 10 April 2015, the applicant’s two letters to the Immigration Department dated 15 March 2016 and 28 April 2016, and the Board’s letter to the applicant dated 5 September 2017.  The Form 86 dated 26 September 2017 did not give any ground for judicial review. 

10.  However, in his affirmation dated 26 September 2017, the applicant said that he wrote the Applicant’s Letters to reopen his case so that his claim under BOR 2 risk may be determined.  He said that he had earlier withdrawn his appeal to the Board because he thought his problem in Pakistan was solved, only to find out later that this was not the case.  The applicant says he has limited English proficiency and legal knowledge, and was not given any legal or language assistance in relation to either the withdrawal or the request for reopening his case.

11.  The judge reviewed the materials before her.  After summarizing the facts and background of the case, and noting that the Board had refused to reopen the applicant’s appeal as it considered that it was functus officio following the dismissal of the appeal following the applicant’s withdrawal of it, she gave the following reasons in refusing leave at [8] to [10] of the CALL-1 Form dated 16 March 2018:

“8. The applicant should have appealed the Director’s decision to the TCAB before he could consider an application for leave to judicial review that decision. He did lodge an appeal/petition almost three years ago but withdrew it. He now seeks to question that decision through this application. The application is, in my view, inappropriate. Moreover, he has presented no grounds against the Director and the applications delay significant. There would be prejudice to the Director after such a lapse of time. I see no question of public importance in this decision or his claim.

9. I see no merit or any ground in his submission that the TCAB was wrong to refuse to hear his appeal 2 years after he withdrew it.

10.    This leave application is rejected for a lack of merit.”

12.  On 23 March 2018, the applicant lodged his notice of appeal against the judge’s decision.  In it, he complained that he had been given no legal advice as to the proceedings.  He acknowledged having withdrawn his appeal to the Board, but said this was because he thought it was safe for him to return to Pakistan, only to later find out that this was not in fact the case.  He then stated that although he had been told that his BOR 2 claim had been determined, he had received no notification of this, and remained uncertain as to the status of the BOR 2 risk claim.  He said that it was because he could not obtain a clear answer as to this that he wrote to the Board seeking to reopen his appeal/petition, only to be told that the Board could not deal further with his appeal following its withdrawal.

13.  The applicant agreed by a letter of 28 March 2018 that the appeal could be heard by two judges.

14.  In his skeleton submission dated 25 May 2018, the applicant repeated the same grounds in his affirmation and the notice of appeal.  He added that he was told that his claim under BOR 2 risk had been determined but he did not know the results.  He claimed that he had “been making my best effort in making enquiries…[with] the authorities but received no reply”.

15.  Having considered the materials put forward by the applicant, we were of the view that we would be assisted by submissions and evidence from the Director (who, like the Board, had indicated that he would take a neutral stance in relation to the appeal).  By the court’s letter dated 30 May 2018, the Director was directed to provide evidence and submissions in relation to a number of matters, namely:

(1)     submissions as to whether the functus principle applied to the Board, a point on which there appeared to be no Court of Appeal or higher authority in Hong Kong;

(2)     evidence as to the way in which the Unified Screening Mechanism and petitions against decisions under it operated, given that the statutory scheme under the Immigration Ordinance only applied to torture claims, but not to the other recognised bases for non-refoulement protection;

(3)     submissions on whether it was open to the appellant to lodge a fresh appeal against the Director’s Decision, or whether res judicata or issue estoppel would operate to bar such a fresh appeal; and

(4)     evidence as to how the applicant’s BOR 2 claim (which he understood to have been resolved against him) was in fact dealt with, as there was nothing in the court papers to demonstrate this.

16.  On 27 July 2018, the Director lodged his evidence and submissions. 

17.  The evidence consisted of two affirmations.  The first was an affirmation of Mr Cheung Ho Chi, an Assistant Secretary of the Security Bureau, dealing with the history and development of the scheme for dealing with non-refoulement claims, which made it clear that following the adoption of the Unified Screening Mechanism, torture claims were dealt with under the statutory system under the Immigration Ordinance, while other non-refoulement claims (persecution, BOR 3 and, subsequently, BOR 2) were dealt with by an administrative scheme that was modelled on the statutory system.  The second affirmation was by Mr Lai Wing Hung, a Senior Immigration Officer, who was personally involved with the processing of the applicant’s claim, and set out the procedural history of the claim, exhibiting relevant correspondence and documents which had not been already provided by the applicant.

18.  The submissions, prepared by Ms Chow, who appeared before us at the hearing, dealt with the various questions and issues raised in the court’s letter of 30 May 2018.

19.  We heard the appeal on 7 November 2018.  Ms Chow appeared for the Director, and the applicant appeared in person.

20.  For the purposes of this appeal, it is important to focus on the decisions in respect of which judicial review was applied for.  As noted above, these were the Director’s Decision of 10 April 2015, the two letters from the applicant to the Immigration Department dated 15 March 2016 and 28 April 2016, and the letter from the Board to the applicant dated 5 September 2017 informing the applicant that it would not reopen his appeal because it was functus.

21.  The judge held that the application for judicial review in respect of the Director’s Decision was well out of time (having been applied for more than 2 years after the date of the decision), and should on that ground alone be dismissed.  We can see no error in this decision, and there is no basis for interfering with it.  Nor does the applicant seriously suggest otherwise.  Further, and in any event, this court has on many occasions held that as the decision of the Director is capable of being appealed by the appeal/petition process, where that process has been invoked (as it was here), there is no scope for review of the Director’s Decision, and the focus should be on the decision of the Board.

22.  As for the two letters of the applicant to the Immigration Department, these are clearly not decisions of the Department or the Director, and thus cannot be the subject of judicial review.

23.  This leaves for consideration the decision of the Board embodied in its letter to the applicant dated 5 September 2017.  As to this, Ms Chow pointed out that although there was no Court of Appeal or higher authority in this jurisdiction that established that the functus principle applied to proceedings before the Board, it had been held by the Court of First Instance in HT v Betty Kwan (Adjudicator) [2017] 2 HKLRD 567 that the functus principle was applicable to the Board, so that where an appeal pending before it was withdrawn, and such withdrawal was accepted by the Board, the Board would have no further function to perform and would be functus officio.

24.  Ms Chow submitted that the decision in HT v Betty Kwan was correct, and should be applied in this case.  In that case, Deputy High Court Judge Kent Yee adopted the approach of the UK’s Asylum and Immigration Tribunal to withdrawals of appeals in Ap v Secretary of State for Home Department [2007] UKAIT 00022, [2008] INLR 118, in which it was held that where it was sought to reopen 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.  In the case before him, the Deputy Judge held that the adjudicator had rightly concluded that the withdrawal was valid.  He went on to hold that the functus principle applied to the Board, where an appeal had been validly withdrawn, coming to this conclusion by reference to:

(1)     the terms of the Ordinance, section 37V(2)(b) of which provides that a torture claim rejected by the Director is finally determined when the appeal against it (if one were lodged) was disposed of, and concluding that the termination of an appeal on its withdrawal disposed of the appeal, even if there had been no determination of its merits; and

(2)     consideration of the desirability of finality in relation to the determination of such claims, and the need to prevent abuse by late withdrawals and subsequent reinstatement of appeals.

25.  In our view, HT v Betty Kwan was rightly decided and we consider that the functus principle applies to the Board in relation to validly withdrawn claims.  The decision of the Board contained in its letter to the applicant dated 5 September 2017 was therefore correct, and is not one in respect of which any grounds for judicial review can be made out.  We therefore conclude that the Judge was right to dismiss the application in relation to it.

26.  So far as the question of res judicata is concerned, we do not think that, on analysis, it arises in the context of this appeal.  Although we doubt whether there was a decision on the merits by the Board in circumstances where the appeal was withdrawn before it was heard, it does not seem to us that a renewed appeal to the Board (which would, in any event, be long out of time) would have any realistic prospect of success.

27.  For the foregoing reasons, we are satisfied that the applicant is unable to point to any error on the part of the judge in her decision below.  The judicial review as framed by the applicant has no prospects of success, and this appeal must accordingly be dismissed.

28.  However, that said, we are conscious that as matters have developed, it appears that the applicant’s real complaint may relate to the way in which his BOR 2 risk claim was dealt with (or, perhaps more accurately, not dealt with).  This was not, however, the subject of any decision which was the subject of the applicant’s application for judicial review in the court below, and was not therefore something we could deal with on this appeal.

29.  The correspondence in relation to this (between March and September 2017) has been described above.  However, beyond informing the applicant that his appeal/petition (which did not relate to BOR 2, that not having been the subject of the Director’s Decision of 10 April 2015) had been disposed of by the Board’s decision of 30 November 2015, nothing further was said about his BOR 2 claim. 

30.  Mr Lai, in his affirmation, suggests that, when replying to the applicant by the letters dated 21 March 2016 and 3 July 2017, he also had in mind the possibility of a subsequent claim pursuant to section 37ZO of the Ordinance, but concluded that the applicant had not satisfied the requirements of section 37ZO(2) (which require the applicant to show that there has been a significant change of circumstances since the previous claim was withdrawn, which would, taken together with the material previously submitted, give the claim a realistic prospect of success). However, this was not brought to the applicant’s attention in any of the letters to him.  Moreover, it seems to us to be questionable whether the applicant’s BOR 2 claim, which had not previously been raised, should be regarded as a subsequent claim.

31.  We would accept, and indeed would emphasise, that applicants for non-refoulement protection must put forward all their available claims at the same time, and cannot split up their claims to be advanced separately in order to buy time by delaying the process of determining their entitlement to protection.  However, it is also clear from many cases that, for a period of time after the entitlement to non-refoulement protection on the basis of BOR 2 risk was recognised, it was the practice of the Director to invite applicants whose claims in respect of torture, persecution and BOR 3 risks had failed, whether they wished to make a further claim on the basis of BOR 2 risk, and if so, whether they wished to put forward additional materials for consideration.  This approach would seem to suggest that BOR 2 risk claims were not regarded as “subsequent claims” when the earlier claims (as in this case) did not cover BOR 2 risk.

32.  We therefore enquired, towards the end of the hearing, whether the Director might be prepared to consider (for the first time) the applicant’s claim under BOR 2 risk.  In response to this, Ms Chow pointed out that the applicant had indicated in one of his letters of 20 July 2017 that he wished to cancel all his claims.  The applicant, however, said that he had been told that he had to do so if he wanted to avoid being placed in detention, and thus had not genuinely intended to abandon all his claims. In the circumstances, it seems to us that the appropriate way forward in relation to this applicant’s BOR 2 claim would be for him to make such a claim to the Director at the earliest opportunity, and for the Director to consider such claim and deal with it as he thinks appropriate, bearing in mind what we have said above.  It will then be for the applicant to pursue such avenues as may be open to him if he is aggrieved with the Director’s Decision.

33.  So far as the costs of this appeal are concerned, as the Director appeared at the court’s request, we think that the appropriate course would be to make no order as to costs, notwithstanding that we have dismissed the appeal.