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

HCAL 2374/2018

[2023] HKCFI 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2374 OF 2018

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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 12 December 2022 (the “Summons”) seeking leave to appeal the order of Deputy High Court Judge P Li (“DHCJ P Li”) dated 10 September 2021 (the “Order”) out of time.

2.  By way of background, the Applicant filed an application by way of Form 86 on 29 October 2018 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 11 October 2018 (the “Decision”) refusing his appeal against the decision of the Director of Immigration in his Notice of Decision refusing his claim for non-refoulement protection. Then, on 2 September 2021, he applied by way of affirmation seeking to withdraw his leave application (the “withdrawal application”) because all his problems in his home country had been solved and he wanted to return to his home country. On 10 September 2021, DHCJ P Li made the Order allowing his leave application to be withdrawn. Then, 15 months later, the Applicant now seeks leave to appeal the Order out of time. His ground of appeal as stated in his supporting affirmation is that his life would be in danger if he returns to his home country. He said that he has “received fresh information from [his] family members that [his] issue is still on going and [he has] serious threats in [his] home country”, “[his] life is in danger in [his] home country, and “[he] would like to continue [his] case”.

3.  The Order he sought to appeal was in fact made at his own request and upon his own application. There is nothing for him to appeal against. In substance his application is to re-open his leave application which he had previously withdrawn.

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Court Judge Yee in HT (Hussain Tasawar) v Betty Kwan[2] that where it was sought to re-open an appeal which had been withdrawn, the tribunal should only consider whether or not the withdrawal was a valid one – ie, whether it was the result of a deliberate and informed decision.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. Otherwise, there is nothing to 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 supporting affirmation is that his life would be in danger while previously he thought it would not. Previously, he sought leave to apply for judicial review of the Decision of the Board finding that he would not be in danger if refouled. By his leave application, he was in effect 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 Pakistan. 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 in effect re-open his leave application is to show that the Order is a nullity because 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 application is unequivocal – he wanted to return to Pakistan because all his problems there have been solved. Impliedly, his life would not be in danger and he no longer needs non-refoulement protection. In his supporting affirmation, he merely said he received fresh information from his family members that his problems are still on going and his life would be in danger if he returns. He is an adult of sound mind. He made an affirmation solemnly declaring all his problems in Pakistan have been solved. An affirmation is a serious legal document not to be made lightly. He affirmed that the facts deposed therein are true to the best of his knowledge, information and belief. There is nothing to suggest his decision to withdraw his leave application was not a deliberate and informed decision in that it was the result of some vitiating elements such as mistake, misrepresentation and duress. 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 for extension of time to appeal the Order, which effectively is an application to re-open his leave application, is refused.