RE DAS PURNIMA RANI

CACV 85/2019

[2019] HKCA 669

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 of 2018)

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J U D G M E N T

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

The appeal

1.  This is an appeal by the abovenamed applicant, Ms DAS Purnima Rani, against the order made by Deputy High Court Judge K W Lung (“the Judge”) on 8 February 2019 (“the Judge’s Decision”) refusing her leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“theBoard”) given on 22 August 2017 (“the Board’s Decision”), which refused to “re-open” the applicant’s appeal against the rejection by the Director of Immigration (“the Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 23 January 2017 (“the Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged about 35, is a fear of being harmed or even killed by members of the family of her husband, MD Amit Khan (“Amit”).  Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant was born to a Hindi family that had originally supported and voted for the Awami League (“AL”). 

(2)  In around 2009 or 2010, the applicant started to work at a non-governmental organisation (NGO) in Sylhet where she met Amit, a fellow worker at the NGO.  Amit came from a wealthy Muslim family who were ardent supporters of the AL.  They fell in love and started a relationship which they pursued in secrecy.

(3)  In around the end of October 2013, the applicant and Amit got married in Sunamganj, without telling their respective families.  Only 2 of their friends called Rajib and Raima knew of the marriage.

(4)  However, Amit’s family somehow found out about, and disapproved of, Amit’s marriage to the applicant.

(5)  Beginning from around the end of 2013, Amit’s family launched 7 attacks against the applicant and her family, by making verbal threats to the applicant’s father by telephone, gathering outside the applicant’s house shouting insults and threats, hurling insults at the applicant’s father and beating him up with sticks on the street, making verbal threats to the applicant’s paternal uncle when he passed by Amit’s residence and abducting the applicant twice to demand her to hand over the marriage papers and then to force her to sign on a piece of paper which her abductors claimed were divorce papers. 

(6)  In the first threatening phone call to the applicant’s father, the caller demanded the applicant to convert to Islam, which the applicant refused to do.

(7)  The applicant was beaten up with sticks and iron rods and drugged in the course of the 2^nd abduction.

(8)  In the meantime, Amit, who had also been badly beaten by members of his family because he refused to leave the applicant, had gone missing.

(9)  The applicant and her family did not report any of the incidents to the police because one of threats made by Amit’s family was to kill the applicant and her family if they talked about these events.

(10)  The applicant’s father had only sought, but did not get any, assistance in solving their problem with Amit’s family from the AL main office in Sylhet.  The applicant was so angered and disappointed that the family switched to support the Bangladesh Nationalist Party in late 2013.

Entry into Hong Kong and lodgment of NRF Claim

3.  During her hospitalisation for the injuries she sustained during the 2^nd abduction, the applicant saw an advertisement for foreign domestic helpers working in Hong Kong.  She decided to apply as she had promised her attackers that she would leave the country.  In around the beginning of 2014, she travelled to Dhaka where the employment agency was located.  She saw Amit before she left for Dhaka.  By then, he had returned to his family.  That was the last contact she had with Amit.  She said at her screening interview that she did not know the whereabouts of Amit.  The applicant stayed in Dhaka for a few months unharmed.

4.  She arrived in Hong Kong on 4 June 2014 to work as a foreign domestic helper. After her employment contract was prematurely terminated on 7 November 2014, she did not leave within 14 days as required by the law and had overstayed since 22 November 2014.  She was arrested by the Immigration Department on 11 February 2015.  She raised the NRF Claim by way of written representation on 11 February 2015.  She submitted her non-refoulement claim form on 8 July 2016.

Director’s Decision

5.  In processing the NRF Claim, the Director’s representatives conducted a screening interview with the applicant who had legal representation from the Duty Lawyer Service (“DLS”).

6.  The Director’s Decision covered all applicable grounds: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].  The Director found the NRF Claim to be unsubstantiated.

(1)  First, it was not accepted that the applicant faced any real risk of being harmed or killed by Amit’s family if she should return to Bangladesh.  The behaviour of Amit’s family showed that they had no real intention to cause any serious harm to the applicant or her family.  While they administered death threats in the various attacks, only the applicant’s father and the applicant received relatively minor injuries in one of the attacks and in the 2^nd abduction respectively.  The applicant was not hurt at all in the 1^st abduction.  Her abductors also left her outside her house for her family to discover after the 2^nd abduction.  The evidence suggests that Amit’s family wanted the applicant to terminate her relationship with Amit, rather than really hurting her or her family.

(2)  Second, it was also not accepted that reasonable state protection would not be available to the applicant upon her return to Bangladesh.  There is objective country of origin information (COI) showing that the Bangladeshi government has taken practical steps to improve their effectiveness and to monitor the conduct of the Bangladeshi police. The availability of state protection would lower or even negate the level of risk (if any).

(3)  Third, reasonable internal relocation alternatives are available to an able-bodied adult with both domestic and overseas working experiences like the applicant in a big and populous country like Bangladesh.  The applicant actually stayed in Dhaka without coming to any harm for a few months in 2014 before she came to Hong Kong.

Appeal to Board and Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board on 2 February 2017.

8.  By a letter dated 7 July 2017 to the Board, the applicant sought to withdraw her appeal.

9.  By a letter dated 10 July 2017, the Board informed the applicant that her request for withdrawal of her appeal was accepted and that her appeal was thereby dismissed.

10.  Then, by a letter dated 17 August 2017 to the Board, the applicant requested the Board to “re-open” her appeal case, explaining in paragraphs 2 and 4 thereof that:

“2. In July 2017, I was of the view that I could return back to Bangladesh and assumed that the problem I was facing would have gone away. As such on 7^th July 2017, I submitted a letter to the [Board] that I wished to withdraw my appeal application which was made in January 2017.

…

4. I wish to state that following my letter dated 7^th July 2017, and your letter 10^th July 2017, I have been informed that the problems I faced previously in Bangladesh still exist namely:

(a) If I returned to Bangladesh, I would still be harmed by the family members of Amit, who are Muslim and supporters of the [AL] because they did not accept my relationship with Amit.

(b) Further I would be harmed by the family members of Amit as I refused to convert my religious beliefs from Hindu to Muslim and change my political affiliation from the [BNP] to the [AL].” (emphasis added)

11.  The Board referred to Hussain Tasawar v Betty Kwan, Adjudicator (Torture Petitions) of the Petition Team of the Security Bureau, HCAL 20/2015[5], and held that, following such decision, no further action could or would be taken in relation to the applicant’s appeal because the Board was “functus officio”, meaning that it had no power or authority to deal with the applicant’s appeal after accepting the withdrawal of the same (i.e. the Board’s Decision).

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 941/2018 on 25 May 2018, which was out of time by at least 6 months, the applicant sought leave to apply for judicial review of the Board’s Decision.

13.  By a document entitled “GROUNDS ON WHICH RELIEF IS SOUGHT” and paginated from 5 to 23 attached to the Form 86 (“JR Grounds Document”), the applicant complained under paragraph 8 on page 5 that the Board was in breach of procedural fairness in that it had:

(1)  unlawfully fettered its discretion by refusing her appeal “on the grounds that they did not satisfy the requirement”;

(2)  acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)  made decisions which were unreasonable or irrational in the public laws sense or were a result of procedural errors or unfairness; and

(4)  failed to meet the greater care and duty owed to a self represented claimant.

14.  Then, at pages 17-19 of the JR Grounds Document, the applicant further suggested that the following failures on the part of the Board had caused it to arrive at a decision which was Wednesbury unreasonable:

(1)  misdirecting itself on the law by requiring that the applicant had to have experienced torture in the past in order to establish substantial grounds for believing that there is a risk of torture in the future;

(2)  failing to carry out sufficient research or inquiry into the COI or to have regard to relevant and up-to-date COI, resulting in reliance on outdated COI;

(3)  failing to take into account or putting proper weight on relevant COI, cherry-picking the COI or putting weight on irrelevant COI;

(4)  failing to evaluate or make finding of fact as to whether there is a consistent pattern of gross or mass violation of human rights in Bangladesh;

(5)  failing to analyse or assess whether state protection exists in Bangladesh and misdirecting itself as to the extended meaning of state protection;

(6)  taking into account or putting weight on irrelevant considerations or relying on inaccurate facts;

(7)  failing to call for psychological or psychiatric evaluations or reports on the applicant;

(8)  applying the incorrect standard of proof; and

(9)  relying on source of news which is not officially recognised or is simply hearsay or cases which are fairly outdated considering the dramatic changes, which resulted in its making the groundless speculation that it is safe for her to return to Bangladesh.

15.  Further, in the paragraph numbered 9 on page 19, the applicant mentioned the unspecified failures of the assigned duty lawyer, resulting in a lack of, or insufficient, legal representation for her at the first instance.

16.  Lastly, in the paragraph numbered 4 on page 20, the applicant stated that it was unfair to her that the Board refused her appeal because she withdrew it before.

17.  We pause to observe that with the exception of the last-mentioned ground, the said other contents of the JR Grounds Document do not appear to have anything to do with the present case where there was actually no hearing by the Board of the applicant’s appeal after its withdrawal by the applicant.

18.  However, by an affirmation filed on the same date as the Form 86, the applicant did say in paragraphs 10 to 12 on page 4 the following:

“10. On 07 of July 2017, I submit a letter to the [Board] to withdraw my appeal in view of that, I could return back to Bangladesh and assumed that the problems I was previously facing would have solved or gone away. …

11. But I was wrong. After confirming the danger and life threats with my family members and friend in Bangladesh I went back to the [Board] immediately to re-open my appeal and write a request letter on 17 of August 2017. …

12. But the Adjudicator from the [Board] didn’t show any mercy on my request and refused my appeal just by because I withdraw my appeal before. This is so unfair to me.” (emphasis added)

19.  The Judge’s reasons for refusing leave after an oral hearing can be found in [4] of the Form CALL-1 dated 8 February 2019, [2019] HKCFI 308, as follows:

“4.  Her application for leave for judicial review is against the decision of the Adjudicator of the Board.  Since the Adjudicator dismissed her appeal upon her withdrawal of her appeal, there is simply nothing that she can complain against the Adjudicator.”

Appeal to Court of Appeal and grounds of appeal

20.  By a notice of appeal filed on 21 February 2019, the applicant appealed against the refusal of leave for judicial review on these grounds:

“1. The judge has wrongly exercised his decision in coming to the conclusion that the Adjudicator at the [Board] has not erred in his decision.

2. Fist of all, the Adjudicator Decided that I am not a credible witness due to the discrepancies found in various statements and records of interviews, protection claims from on 4 June 2014. My non-refoulement protection claim from in February 2015. On 23 January 2017 rejected by a non-refoulement Claim, By Director my clam, 3 February 2017. Board for Appeal, and myself, I don’t understand good English I make later 7 July 2017 withdrew my application for Appeal, on 10 July 2017 received a confirming a later to withdraw my appeal against. But 17 August 2017 I send a later on Immigration reason that Bangladesh still exist to returned to Bangladesh harmed and killed my family members of Amit Supporting of the Awami League. At the hearing before me, true said that I also applied to the Director to reinstate my withdraw application, my application was rejected by the Director. Adjudicator also not reinstate my application, on 25 August 2017, the Adjudicator refused my non-refoulement protection Claim.

3. I have already complained to the authorities about the lack of clarity and transparency in the bundle. The judge dismissed my claims because “it was then transpired that his confusion was more to do with his own memory and his inability to answer questions properly. He was not actually confused about the procedure and the interpreter had gone through the bundle with him and he understood its cont.” The is an overstatement as the bundle was only interpreted to me whenever the Adjudicator found is necessary to be referred to certain paragraphs or document. As much as I understood the contents which were interpreted to me. I had no means of finding out what the rest was. The fact that there was an interpreter to be arranged to me during the course of the oral hearing is not a fair indication that the process has been procedurally unfair. The bundle was never read to me prior to the oral hearing as I was only asked to pick it up with limited assistance (as the [DLS] has refused to provide further assistance) and also the fact that I speak little English but can barely read English. It is unfair and detrimental to me to expect me to prepare for the bearing.

4. As I have demonstrated the fact that I have been relying heavily on interpreter, I will never have any means of finding out if the interpreters have been interpreting my words correctly, and further whether the officers have been nothing down the words correctly. As much as I wish to rely on the translation, it has proven so far in the case that my word have always been wrongly interpreted. The judge herself has witnessed the confirmation that I had no complaints against the duty lawyer. A lot of the words were simply lost in translations and as such the Adjudicator has wrongly exercised his case management power in deciding that I lack credibility. I don’t wish to clarify further because I did not have anyone to seek legal advice from and also because I have reached a point of frustration at that point in having to explain myself for the things that I never said.

5.  Having regard to the above circumstances, I seek an order that that the order set down by [the Judge] be set aside.”

21.  We pause again to note that these grounds (about being found an incredible witness by the Board, lack of clarity of the hearing bundle, and being doubtful about the quality of the interpretation at the hearing) are inapplicable as there was no hearing of the applicant’s appeal by the Board.  Her complaint is that the Board refused to “re-open” her appeal for hearing.

22.  The applicant then filed a 13-page written submission on 6 May 2019, in which she repeated (in paragraph 13 on pages 5 to 6) her grounds for seeking judicial review as set out in paragraphs 13 to 16 above.  However, as in the case of the JR Grounds Document and the notice of appeal, many of the other points made in the written submission are inapplicable to the facts put forward by the applicant in support of the NRF Claim as summarised in paragraph 2 above, or to the issue raised by the Board’s refusal to “re-open” the applicant’s appeal against the Director’s Decision.  For example, the applicant asserted that:

(1)  “The matters involved within this appeal are of significant public importance; and particularly with regard to the standard and approach within the Assessment of evidence and credibility within non-refoulement Claims.” (page 3 paragraph 7)

(2)  “As a result of my political activism/profile, if I returned to Bangladesh.  I would be persecuted, Torture and/ killed My political rivals, particularly those who invested in the collapsed back at which I worked, the Somota Manab unnayan Society “SMUS”.” (page 3 paragraph 8)

(3)  The Board made findings against her (pages 3-4 paragraph 12) or approached/evaluated/analysed the evidence in flawed ways (pages 6-13).

23.  The applicant appeared in person at the hearing of the appeal on 3 June 2019.  She had nothing to add to her grounds of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

24.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will scrutinise 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 [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

25.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

26.  Other than barely asserting that it was unfair for the Board to refuse to reinstate her appeal because she had withdrawn it, the applicant had not identified to the Judge in what way such refusal constituted an error of law, procedural unfairness or irrationality on the part of the Board.

27.  Nor has she articulated to this court how the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.

28.  Nevertheless, we have examined the Judge’s Decision, which was essentially that the applicant could have no complaint about the Board’s dismissal of her appeal against the Director’s Decision, which was made upon her own withdrawal of the appeal. 

29.  With respect, the Judge might have missed the real point raised by the applicant, which was the Board’s subsequent refusal to reinstate the applicant’s appeal after dismissing it upon the applicant’s withdrawal.  The real issue is whether the Board was correct in its view that it was functus, and that in turn depends on whether the applicant’s withdrawal of her appeal was valid.  The law on this issue was set out by this court (Lam VP and Barma JA) in Ali Usman [2018] HKCA 955 in which the court approved the judgment of DHCJ Yee in HT (Hussain Tasawar) v Betty Kwan [2017] 2 HKLRD 567.  The Board had clearly applied the law as set out in HT as it expressly referred to this case in its refusal to reinstate the appeal.

30.  As noted in DHCJ Yee’s judgment dated 17 March 2017, HT appealed to the Board against the Direction’s decision to reject his non-refoulement claim.  About a month after he lodged his notice of appeal, HT requested the Board to “cancel” his appeal “as soon as possible”.  Consequently, the Board informed HT that it treated his appeal as one that had been disposed of and finally determined and vacated the scheduled oral hearing.  However, about another month later, the DLS sent faxes to the Board to give notice of HT’s intention to withdraw the previous withdrawal of his appeal and to proceed with his appeal after its reinstatement.

31.  The Board arranged a hearing for HT and the DLS as HT’s legal representative to give evidence and make legal submission in support of HT’s application to reinstate his appeal.  The Board refused the application. The Board did not accept HT’s explanation that he mistakenly “cancelled” his appeal due to depression, which was not supported by medical evidence.  Even if HT did suffer from depression, there was nothing to show that he did not know what he was doing when he sent his letters to the Board and instructed the DLS to write to the Board to discontinue his appeal.  The Board found as a fact that HT acted with the knowledge and intention to bring his appeal procedure to an end (which finding was not challenged in the judicial review).

32.  The Board then went on to conclude as a matter of law that:

(1)  After the Board acceded to HT’s application to cancel/withdraw/abandon his appeal, the appeal procedure came to an end and the Board became functus officio.

(2)  After an appeal has been finally disposed of and determined by the Board’s acceptance of a non-refoulement claimant’s withdrawal of the same, there is no delegated power for the Board to re-open or reinstate the cancelled, withdrawn and/or abandoned appeal. 

(3)  The only way open to HT was to make a subsequent non-refoulement claim pursuant to s 37ZO[6] of the Immigration Ordinance (“Ordinance”).  

(4)  Sections 16[7] and 17[8] of Schedule 1A to the Ordinance (“Schedule 1A”) cannot be used to enable the Board to reinstate an abandoned or withdrawn appeal.   

(5)  The Board is not a court but a creature created by statute and has no inherent jurisdiction.  The powers delegated by the Chief Executive pursuant to article 48(13)[9] of the Basic Law do not include inherent jurisdiction.

(6)  The “nullity principle”, which refers to the court’s jurisdiction to grant leave to withdraw a notice of abandonment (or withdrawal) of an appeal or application for leave to appeal where the court is satisfied that the notice of abandonment is a nullity in the sense that the abandonment was not the result of a deliberate and informed decision, cannot be adopted in a non-refoulement claim.  

(7)  In any event, the principle is not consistent with Part VIIC of the Ordinance. 

33.  DHCJ Yee dismissed HT’s contentions that the Board had jurisdiction to re-open his validly withdrawn appeal upon his application under:

(1)  the discretion under s 16 of Schedule 1A[10] (see [32]-[42]);

(2)  any implied power required for the effective exercise of the Board’s jurisdiction (see [43]-[51]); or

(3)  article 48(13) of the Basic Law[11] (see [52]).

34.  DHCJ Yee further held that the Board can only “reinstate” an invalidly withdrawn appeal to the Board against the Director’s rejection of a non-refoulement claim.  He so held by following the decision of the United Kingdom’s Asylum and Immigration Tribunal (“UKAIT”) in Ap v Secretary of State for the Home Department [2008] INLR, in which it was held that the nullity principle used in criminal courts (see paragraph 32(5) above) should also be adopted by the tribunal.  The Deputy Judge in fact started his analysis by examining Ap.

35.  In Ap, Ap was a Pakistani national seeking asylum and her application was refused in the first instance.  She then lodged an appeal with the UKAIT.  At the hearing of her appeal, Ap withdrew her appeal through her solicitors orally, which withdrawal was accepted by the presiding immigration judge.  Shortly after the hearing, Ap changed solicitors and sought to argue that her former solicitors had not been given valid instruction to withdraw her appeal.  She applied to contest the withdrawal and continue with her appeal.  The UKAIT ordered a preliminary hearing to determine the validity of Ap’s withdrawal.  It was held that the withdrawal was invalid and thus a nullity.  Ap’s appeal was allowed to proceed.

36.  DHCJ Yee set out at [24] the following summary of the 2 immigration judges’ reasoning and conclusions:

“…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.” (emphasis added)

37.  DHCJ Yee also found (at [25]-[26]) the following observations of Judge Mackey in [58] of the UKAIT’s judgment in Ap and his reference to R v Medway [1976] 1 QB 779 (in which the English Court of Appeal accepted the nullity principle which is also frequently adopted by the criminal courts in Hong Kong) to be germane to the case before him:

“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” (emphasis added)

38.  Although the Board in HT did not expressly refer to Ap, DHCJ Yee observed that it had in fact followed more or less the same approach in dealing with the application of HT.  Even in the absence of a local provision like rule 59 of the Asylum and Immigration Tribunal Procedure) Rules 2005, the Board treated the acceptance of HT’s withdrawal as a potential procedure error and allowed HT to contest the validity of his withdrawal at the hearing and considered such issue.

39.  The Board in HT found as a fact that HT acted with the knowledge and intention to bring his appeal to an end when he applied for his appeal to be “cancelled”.  Had the Board not made such finding and instead found that the withdrawal was invalid due to HT’s mental condition, DHCJ Yee considered (at [29]) (1) that the Board would have treated HT’s appeal as remaining extant; (2) that there would be no question of re-opening or reinstating his appeal in such a scenario; and (3) that it was only with the said factual finding that the Board considered itself functus officio with no jurisdiction to take any step regarding the appeal.  We have to say we are not so sure that the Board would necessarily have reacted in the way expected by the Deputy Judge given its express conclusion that the nullity principle cannot be adopted in non-refoulement claims and is further not consistent with Part VIIC of the Ordinance (see [32(5)-(6)] above).

40.  Be that as it may, notwithstanding the differences between the relevant UK rules and the Ordinance, DHCJ Yee agreed with the reasoning in Ap and considered that the same principles should apply in Hong Kong given that the applications dealt with by the UKAIT are very similar in nature to those handled by the Board (see [30]).

41.  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.

42.  The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2)[12] if he can fulfil the requirements in sub-ss (a) and (b) thereunder.

43.  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 claimant’s application.  Quite apart from the nullifying effect of an invalid withdrawal/abandonment, this conclusion also appears to us to follow from applying the high standard of fairness required in handling non-refoulement claims.

44.  Applying these principles, first, we do not read the applicant’s letter dated 17 August 2017 to the Board (see paragraph 10 above) or paragraphs 10 to 12 on page 4 of her affirmation in support of the Form 86 (see paragraph 18 above) as contesting the validity of the applicant’s earlier withdrawal of her appeal to the Board against the Director’s Decision.

45.  Second and more importantly, as volunteered by the applicant in her said letter and affirmation, she made a deliberate and informed decision in July 2017 to withdraw her appeal. She alleged that she subsequently came into more and/or different information but has failed to identify what that information was, or explained why she did not have (or could not have found) such information when she withdrew her appeal.  Her subsequent change of mindcould not, in our view, invalidate her earlier withdrawal of the appeal before the Board.

46.  That being the case, while the Judge might not have addressed the real issue raised by the applicant, the outcome would have been the same.

47.  In light of such conclusion, it is unnecessary to deal with the applicant’s delay for at least6 months in seeking leave for judicial review, which the Judge likewise did not consider although we are inclined to the view that in the absence of satisfactory evidence to explain the delay, the delay in itself would be sufficient ground to dismiss the application.

Disposition

48.  For these reasons, we do not propose to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.