RE SHAHZAD UMAR

CACV 79/2019

[2019] HKCA 695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 79 OF 2019

(ON APPEAL FROM HCAL NO 1557 OF 2018)

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J U D G M E N T

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Hon Fung J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung given on 15 February 2019 in which he refused to grant leave to the applicant to apply for judicial review against the decision of the Director of Immigration (“the Director”) refusing his non-refoulement claim and the decision of the Torture Claims Appeal Board (“Board”) for refusing to re-open the applicant’s case upon his withdrawal of the appeal.

Factual background

2.  The applicant is a national of Pakistan.  On 2 October 2014, he came into Hong Kong illegally from Mainland China. On 8 January 2015, he raised a non-refoulement claim.

3.  The basis of the applicant’s claim is that he would be harmed or killed by people from the Shias-Muslim sect because of his refusal to convert from his own Wahabi-Muslim sect.

4.  The background facts have been summarized in Part (I): Basis of Claim in the Director’s Decision and will not be repeated herein.

The Director’s Decision

5.  The Director decided against the applicant’s torture claim on 3 November 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (“BOR 3”), Bill of Rights Article 2                (risk of life) (“BOR 2”), as well as other statutory and convention rights against torture and persecution (“the Director’s Decision”).

The Board’s Decision

6.  The Board did not determine the Applicant’s claim on the merits, but treated it as withdrawn. By a letter dated 28 March 2018,              the applicant wrote to the Board stating that he wanted to go back to Pakistan as soon as possible.  He stated that it was “safe” to return to Pakistan.  He stated “I want to cancel all my non-refoulement claims in Hong Kong and I don’t need to see my non-refoulement case officer.                  I have no other requests”.  By a letter dated 18 April 2018, the Board stated that if there were no reply from the applicant by 25 April 2018, it would consider accepting the applicant’s application.  It further stated that the consequences of acceptance would mean that his appeal/petition to the Board would be disposed of and finally determined by the Board.  By a letter dated 27 April 2018, the Board wrote to the applicant confirming the applicant’s withdrawal. On 30 July 2018, the applicant applied to have his case re-opened.  On 1 August 2018, the Board stated that the applicant’s case has already been determined.

7.  By Form 86, the applicant applied to the Court of First Instance for leave for judicial review to quash the decision of the Director and of the Board.  As it is apparent from the Grounds of the application, his challenge was against the decision of the Director.  There was no specific challenge vs the decision of the Board.

Decision of the Judge

8.  At the hearing for leave, the applicant said that he had made the previous withdrawal application because he wanted to go back to his home country. However, he had been diagnosed to have cardiac problem.  His mother advised him to stay in Hong Kong for treatment.  He wished to reopen his case.

9.  The Judge applied Hussain Tasawar v Betty Kwan, HCAL 20/2015, 17 March 2017[1].  He held that the Board’s Decision in refusing to re-open the applicant’s claim was correct.  He held that even though the Board has not determined the applicant’s case on the merits,           it was disposed of by the applicant’s own withdrawal.  It was deemed to be finally determined with the meaning of Section 37V(2) of the Immigration Ordinance (Cap 115).

Grounds of appeal

10.  In the Notice of Appeal filed on 18 February 2019, the applicant stated that he will face hardship if refouled. He stated that the Board has relied on source of news which is not officially recognized or it is simply hearsay.  He complained that the Board relied on cases which are outdated.  None of these complaints are correct because the Board has made no decision of the applicant’s case on the merits.

11.  The applicant’s skeleton submissions lodged on 17 April 2019 submitted vague notions of how a high standard of fairness is required without explanation.  He simply cited passages from legal authority without further elaboration.  None of these submissions are relevant to the Decision of the Judge.

Discussion

12.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.  It is trite that in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board and in this case the decision of the Director afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.

13.  In Hussain Tasawar, Deputy High Court Judge Yee referred to the decision of the United Kingdom Asylum and Immigration Tribunal (“UKAIT”) in Ap v Secretary of State for the Home Department [2008] INLR 118.  Ap applied for asylum and the application was refused.  He appealed to the UKAIT.  At the hearing before the Immigration Judge, Ap’s solicitor withdrew her appeal orally.  By a Notice of Decision, the judge accepted the withdrawal of the appeal.  Shortly afterwards, Ap changed her solicitors and sought to contest the withdrawal on the ground that her former solicitors had not been given valid instruction to withdraw her appeal.  The UKAIT conducted a preliminary hearing to determine the validity of her withdrawal.  After hearing all the evidence, the Tribunal concluded that the withdrawal was invalid and a nullity.  Ap’s appeal was allowed to proceed.

14.  Yee DHCJ noted from the holding of the report of judgment of the UKIAT in Ap:

“allowing the application – r 17 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 provides that an appellant may withdraw an appeal orally at a hearing or at any time by filing written notice with the tribunal. Once validly withdrawn, the appeal is no more and the tribunal is functus officio. However, having regard to the tribunal’s power in r 59 to correct procedural errors, the tribunal was left with a residual power to make any order or take any other step that it considered appropriate to remedy an error in procedure. Where a notice of withdrawal has been given, either orally at a hearing, or by written notice prior to the hearing, the appeal ceases to exist. The question of the validity or otherwise of the withdrawal of an appeal is a jurisdictional matter for the tribunal to determine irrespective of any concession or agreement by the respondent. Accordingly when an application is made to challenge a notice of withdrawal as invalid, the tribunal will proceed to hear the application. Based on all of the evidence placed before it, the tribunal must be satisfied, on the balance of probabilities, that the withdrawal was not the result of a deliberate and informed decision, in other words, that the mind of the appellant did not go with his act of withdrawal, before concluding that the purported withdrawal was in fact a nullity and the appeal is extant. …

… On the facts of the present case, an unintentional misunderstanding had arisen between the former solicitors and the appellant, partly through a lack of funding, the inability to use professional interpreters and the use of a well-meaning friend to act as an interpreter. The form of authority had been wrongly translated to the appellant who had not intended to withdraw her appeal but merely to note that her solicitor was withdrawing his representation of her.  The withdrawal was therefore invalid and the appeal remained extant.”

15.  In §58 of the judgment, Senior Immigration Judge Mackey stated that:

“We emphasize that there is no question of "reinstating" an appeal which has been validly withdrawn. Once the withdrawal notice has been given to the Tribunal the appeal is no longer pending before the Tribunal and the Tribunal has no further function; (it is in the Latin form: functus officio). The only possible legal issue remaining is whether the purported withdrawal is in fact a valid one. If it is invalid, then the appeal remains extant and pending before the Tribunal. This point, of course, has important consequences relating to the ability to remove the Appellant and the continuation of any leave he or she may have by virtue of s.3C of the Immigration Act 1971.”

16.  Judge Mackey referred to R v Medway [1976] 1 QB 779 where the English Court of Appeal accepted that the criminal courts had jurisdiction to grant leave to withdraw a notice of abandonment of an appeal where the court was satisfied that the notice of abandonment was a nullity in the sense that the abandonment was not result of a deliberate and informed decision.  This approach used in the criminal courts should be adopted as the correct and consistent one to be taken by the Tribunal.

17.  Yee DHCJ noted that unlike the UKIAT rules, there is no express provision in the Immigration Ordinance to remedy a procedural error.  However, Yee DHCJ referred to the the nullity principle frequently adopted by the criminal courts in Hong Kong, and held that the adjudicator in Hussain Tasawar had in fact treated the acceptance of the applicant’s withdrawal of the appeal as a potential procedure error, and allowed him to contest the validity of his withdrawal at the hearing.  After hearing live evidence and legal submissions, the adjudicator made the factual finding upholding the validity of the withdrawal, and decided that she had no jurisdiction to re-instate the appeal and considered herself as functus officio. Yee DHCJ was of the view that is no reason why the principles in Ap should not be applicable in Hong Kong given the similar nature of applications before the Board and the UKIAT.

18.  In Re: Ali Usman [2018] HKCA 955 (dated 7 December 2018), the Court of appeal (Lam VP and Barma JA)held that Hussain Tasawar was rightly decided and the functus principle applies to the Board in relation to validly withdrawn claims [25].

19.  In the recent case in the Court of Appeal of Re: Das Purnima Rani [2019] HKCA 669 (13 June 2019), another division of the Court of Appeal (Yuen JA and Lisa Wong J) also followed Hussain Tasawar and Ali Usman and Lisa Wong J who gave the judgment of the Court stated at [41] of the judgment:

“Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal 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. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.”

20.  We agree with the line of authorities in Hussain Tasawar, Ali Usman and Das Purnima Rani that the functus or nullity principle is applicable to procedural steps taken by an appellant before the Board.   Unless the applicant can show that the withdrawal of the appeal before the Board is a nullity by reason of it not being deliberate and informed act, the non-refoulement claim is finally determined when the appeal is disposed of even without determination on the merits.  The Board is functus officio and has no power to re-open the appeal given its valid withdrawal.  So will be case against the Board in any application for leave for judicial review.

21.  In the present case, the applicant’s grounds of appeal, skeleton submissions and all the papers filed on appeal only touched upon the merits of the case before the Director, and did not refer to any ground contesting the validity of his withdrawal.  All that is before us about his reasons to renege on the withdrawal was that he told Lung DHCJ that he had been diagnosed to have cardiac problem and he wanted to stay in Hong Kong for treatment. 

22.  The applicant provided no reasonably arguable grounds for judicial review.  We are of the view that the applicant’s appeal is without merits.  The Court of Appeal would only reverse the decision of the judge if it could be demonstrated that there were errors of law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].  None of these error exists in this case.  

Conclusion

23.  Accordingly, the appeal is dismissed.