RE DAS PURNIMA RANI

CACV 85/2019

[2019] HKCA 867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 85 OF 2019

(ON APPEAL FROM HCAL 941/2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 27 June 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment dated 13 June 2019[1] (“Judgment”) of this court (Yuen JA and Lisa Wong J), dismissing the applicant’s appeal from a decision dated 8 February 2019[2] by Deputy High Court Judge K W Lung (“Judge”), refusing her leave to apply for judicial review of the decision dated 22 August 2017 of the Torture Claims Appeal Board (“Board”).

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  By virtue of s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  In seeking leave to appeal to the CFA, the applicant first asserted in the notice of motion (sic):

“With respect I would like to inform to the Court, There is some error in law in my decision. Decision makers just relied on my previous facts, which were favour on reject my claim, not consider my main point.

The Judges did not address the issues in the skeleton submission dated 6 May 2019.  the Decision is betray a bias and formula approach unlikely fair access the danger of my life.  I therefore verily believe that the judges have not considered my appeal thoroughly.”

5.  Second, the written submission lodged by the applicant on 10 July 2019 read as follows (sic):

“The basis of my non-refoulement claim, which was refused to re-open by the torture claim appeal board given on 22 aug 2017.  The board decision was that “no further action could or would be taken in relation to the applicant appeal, because the board was that it had no power or authority to deal with the applicant appeal after accepting withdrawal of the same, (the board decision)”.

On 7^th of july 2017 I submit a letter to the board to withdraw my appeal for go back to my country bngladesh.  But due to arises same problem. 17 august 2017 I write a request letter to the appeal board to re-open my appeal (non-refoulement claim) .

Submited my request letter for withdrawal my appeal to the appeal board dated 7^th july 2017 . The board by a letter informed me that my request for withdrawal my application was accepted and my appeal was there by dismissed.

Lastly on 25 may 2018 by notice of application to apply for judicial review against that board decision dated 22 july 2017 .  But it is unexpectedly true that the court of first instance, the Honourable judge did not addresses this issues.  And also the court of appeal the honourable judges not consider my request to re-open my claim .  Even the court of first instance and court of appeal did not direction why the torture claim appeal board without any hearing dismissed my request letter to re-open my appeal.

At the time of making the withdrawal application on 7^th july 2017, I have no legal representation and had no obtained any legal advice as such I was not properly aware of the consequences of applying to withdraw my appeal application.

And I therefore verily believe that the judges have not considered my appeal thoroughly.

I therefore respectfully praying to the authorities to take into account my request to re-open my case and proceed with my appeal application against the director notice of decision dated 23 jan 2017, and also postponed the decision of the torture claim appeal board given on 22 august 2017.”

Discussion

6.  The applicant has not by the aforesaid notice of motion or written submission raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

7.  Nor do we see any basis to grant leave under the “or otherwise” limb.

(1)   To recap, the subject matter of the applicant’s intended judicial review application is the Board’s refusal to re-open her appeal (“Board’s Decision”) against a notice of decision dated 23 January 2017 (“Director’s Decision”) by the Director of Immigration (“Director”) in respect of her non-refoulement claim after she had withdrawn the appeal by letter dated 7 July 2017 (“Withdrawal”).

(2)   In dismissing the applicant’s appeal against the Judge’s refusal of leave for judicial review of the Board’s Decision, we followed the judgment of this court (Lam VP and Barma JA) in Re Ali Usman, CACV 70/2018, [2018] HKCA 955[3] that once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment by the claimant, 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; and that a claimant in such a situation can only make a fresh non-refoulement claim under s 37ZO(2) of the Immigration Ordinance (Cap 115) if he/she can fulfil the requirements in sub-ss (a) and (b) thereunder.

(3)   In this regard, we have in [10] and [18] of the Judgment set out respectively the material parts of the letter by which the applicant made the Withdrawal and the material parts of the affirmation filed in support of the application for leave for judicial review of the Board’s Decision.  As further noted in the Judgment, at [44] and [45], the Withdrawal was made by the applicant voluntarily and deliberately, based on the information she then had.  The applicant simply did not in her application to the Board to re-open her appeal against the Director’s Decision or in her application for leave for judicial review of the Board’s Decision seek to contest the validity of the Withdrawal or identify or suggest any matter that might invalidate or vitiate the Withdrawal.

(4)   Nor has the applicant, in her aforesaid notice of motion or written submission, engaged the reasons we set out in the Judgment for dismissing her appeal against the Judge’s refusal of leave for judicial review of the Board’s Decision.

(5)   The complaint made in the third last paragraph of the applicant’s written submission in support of the notice of motion that she made the Withdrawal without the benefit of legal representation or advice which therefore prevented her from obtaining a proper awareness of the consequence of the Withdrawal was not raised, and hence not in any way canvassed, before the Board, the Judge or this court.  Such fresh allegation should, for this reason alone, not be entertained.

(6)   In any event, it appears to us incredible that the applicant was not aware of the legal consequence when she made the Withdrawal.  It is clear from the terms of the letter by which she made the Withdrawal (see [10] of the Judgment) that she was prepared to return to Bangladesh and wrote such letter with the intention that her appeal to the Board against the Director’s Decision be not further processed.

(7)   The proposed appeal to the CFA is utterly devoid of merit.

8.  Neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met.  Accordingly, we dismiss the notice of motion.