HAIDER SHEIKH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 655/2019

[2023] HKCFI 732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 655 OF 2019

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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 letter dated 7 November 2022 seeking leave to re-open his application for leave to apply for judicial review (the “re-opening application”).

2.  By way of background, the Applicant filed an application by way of Form 86 on 7 March 2019 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 13 February 2019 (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, he applied by letter to withdraw his leave application (the “withdrawal application”) because he wanted to return to his home country. On 24 September 2021, Deputy High Court Judge P Li made an order allowing his leave application to be withdrawn (the “Order”).

3.  Then, about 14 months later, the Applicant now seeks leave by letter to re-open his leave application. His ground for re-opening as stated in his letter is that his family recently told him not to return because his enemy would kill him if he could not repay the debt owed to his enemy.

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Court Judge Yee in HT (Hussain Tasawar) v Betty Kwan[2] that where it was sought to re-open an appeal which had been withdrawn, the tribunal should only consider whether or not the withdrawal was a valid one – ie, whether it was the result of a deliberate and informed decision.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 application letter 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 which found there was no real risk that he would face any of the proscribed form of harm arising from the debt he owed should he return to India. By his leave application, he was in effect challenging the finding of the Board that there was no real risk of harm if he returns to India. 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 resurrect 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. His present risk is totally irrelevant for the purpose of showing that the Order is a nullity. Even if what his family had told him were true, it is not a reason for overturning the Order which was properly made 14 months ago. The renewal of the threat is not a proper or relevant reason. As explained above, his past risk 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 India after serving his sentence in Hei Ling Chau Correctional Institution. He is an adult of sound mind. He did not mention anything about his debt and the threat to his life. He hid himself in Hong Kong since May 2015 allegedly to escape from his creditor. After spending six years and exhausting all legal proceedings in resisting his refoulement, he said he wished to return to his home country. Under that factual matrix, impliedly the underlying reason for his withdrawal application was that his problem about his debt had been solved or that he agreed with the Board’s finding that there was no real risk to his life on his return to India. In his re-opening application, he merely said he was told by his family members that his enemy will kill him if he could not pay his debt. There is nothing to suggest his decision to withdraw his leave application was not a deliberate and informed decision or 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.

9.  The Applicant has not advanced any proper grounds for setting aside the Order. His leave application having been withdrawn, this Court is functus officio. Accordingly, the Applicant’s application for re-opening his leave application is refused.