MD IQBAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 3421/2019

[2025] HKCFI 4083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3421 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 18 October 2019”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 18 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision made by the Torture Claims Appeal Board (“the Board”).

2.  In Form 86, the applicant stated “The Torture Claims Appeal Board has disposed the applicant’s appeal finally on 18 October 2019 by ruling that the applicant failed to clarify regarding his application for withdrawal of his appeal/petition the non-refoulement claim” as the judgment, order, decision or other proceeding in respect of which relief is sought.

3.  In fact, the applicant withdrawn his appeal/petition to the Board by way of a letter dated 10 September 2019 (“the Withdrawal Letter”). In response to the applicant’s Withdrawal Letter, the Board gave directions by way of a letter dated 18 October 2019 (“the Board’s 1^st Letter”) that the applicant’s appeal/petition was withdrawn and that the decision of the Director of Immigration (“the Director”) dated 11 May 2018 (“the Director’s Decision”) remained.

4.  However, by way of another letter dated 6 November 2019 (“the Re-opening Letter”), the applicant requested the Board to re-open his claim/petition. Before the Board replied to the applicant, the applicant filed the Leave Application on 18 November 2019.

5.  The Board’s reply letter in response to the Re-opening Letter was issued on 22 November 2019 (“the Board’s 2^nd Letter”) after the Leave Application was filed. In the Board’s 2^nd Letter, the Board informed the applicant that no further action could or would be taken by the Board in relation to his appeal/petition because the Board is functus officio.

6.  The applicant confirmed at the oral hearing before this court on 24 June 2025 that the decision in respect of which relief is sought is the Board’s decision as contained in the Board’s 2^nd Letter. However, this could not be the case as the Board’s 2^nd Letter was issued only on 22 November 2019, which was 4 days after the Leave Application had been filed.

7.  In other words, the Board’s 2^nd Letter did not even exist when the Leave Application was filed. There was no way that the applicant could be aware of the Board’s 2^nd Letter when he filed the Leave Application on 18 November 2019.

8.  Hence, this court cannot accept that the applicant was referring to the Board’s 2^nd Letter when the Leave Application was filed. It was not a case that the applicant had made a mistake about the date of the decision.

9.  Thus, the applicant could only be referring to the Board’s 1^st Letter when the Leave Application was filed.

Amendments

10.  As aforesaid, the decision in respect of which relief is sought in the Leave Application can only be the Board’s decision contained in the Board’s 1^st Letter (“the Board’s Decision”), not the decision contained in the Board’s 2^nd Letter.

11.  Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 18 October 2019”.

The applicant’s case

12.  It is not necessary for this court to state the details of the applicant’s case regarding his claim for non-refoulement protection here, as the only issue in the Leave Application is whether the Board’s Decision contained any errors of law, procedural unfairness or irrationality that warrants this court’s intervention by way of judicial review.

13.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be killed by his creditor as he could not repay the money that was owed to the creditor.

Oral hearing

14.  The applicant requested for an oral hearing and his case was heard on 24 June 2025.

15.  Apart from saying that the decision in respect of which relief is sought in the Leave Application was the Board’s decision contained in the Board’s 2^nd letter, the applicant told this court that he would still rely on the grounds asserted in the annex to his supporting affirmation dated 18 November 2019. However, he had no further particulars to give in relation to the grounds.

16.  The applicant alleged that the reason for his initial withdrawal of his appeal/petition to the Board was that his mother told him his problems in India were solved. He only came to know later that the problems still existed that hence he requested for the re-opening of his appeal/petition.

Grounds for judicial review

17.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

18.  The grounds that were annexed to his supporting affirmation are reproduced as follows:-

“1. The respondent had unlawfully fattered his/her discretion by disposing the applicant’s application upon which he applied to withdraw.

2. The respondent failed to meet the grater care and duty owned to a self-respresented claimant.

3. The respondent’s decision to dispose the applicant’s application were unreasonable or irrational in the public law sense without any notification.

4. The applicant has a problem in his home country at this moment.

5. The applicant has a new problem after he applied to withdraw his claims to the Torture Claims Appeal Board.

6. The applicant don’t want to go back his home country and he want to continue his claim to run.”

Discussion

19.  The main question here is whether the withdrawal of the applicant’s appeal/petition was valid or not. As held by the Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, if the withdrawal or abandonment of the appeal is a valid one, 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. On the other hand, where a withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the applicant’s application.

20.  It is clear from the Withdrawal Letter and the Board’s Decision that the applicant’s application to withdraw the appeal/petition was freely sought, and the applicant understood the consequences of his withdrawal. The applicant also confirmed at the oral hearing before this court that at that time, he did think that it was safe for him to return to India because his mother told him over the phone that his creditor had stopped chasing him.

21.  Clearly, the applicant did make a deliberate and informed decision to withdraw his appeal/petition. There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. The withdrawal of the appeal/petition by the applicant was therefore a valid one.

22.  This court fails to see how the Board erred in acceding to the applicant’s request to withdraw or abandon his appeal/petition.

23.  Moreover, section 37ZTA(2) of the Immigration Ordinance, Cap 115, stipulates that an appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Board. The Board did receive the Withdrawal Letter. Thus, irrespective of whether the Board gave the direction that the applicant’s appeal/petition was withdrawn or not, the appeal was withdrawn by virtue of section 37ZTA(2).

24.  Thus, there is simply no substance in the applicant’s intended judicial review when the applicant had withdrawn the appeal/petition out of his own volition. None of the grounds mentioned by the applicant as aforesaid could amount to any valid challenge to the Board’s Decision at all.

25.  The applicant did file the Re-opening Letter to the Board before the Leave Application and had expressed at the oral hearing before this court that the Board’s decision as contained in the Board’s 2^nd Letter was actually the decision he wanted to challenge by way of judicial review.

26.  However, as the Court of Appeal had held in Re Das Purnima Rani, supra, once there was a valid withdrawal of the appeal/petition, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal.

27.  Thus, even assuming the Leave Application were in respect of the Board’s decision as contained in the Board’s 2^nd Letter, the Board was correct in stating its position that it became functus officio, and its refusal to re-open the applicant’s appeal/petition could not be flawed.

28.  Thus, this court finds no errors of law, procedural unfairness or irrationality in both the Board’s Decision and the decision as contained in the Board’s 2^nd Letter. It would be hopeless for the applicant to pursue his intended judicial review against any of these two decisions.

29.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

30.  For reasons aforesaid, the Leave Application is dismissed.

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence

Form CALL-1