HUSSAIN TASAWAR v. BETTY KWAN, ADJUDICATOR (TORTURE PETITIONS) OF THE PETITION TEAM OF THE SECURITY BUREAU

HCAL 20/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTATIVE LAW LIST

NO. 20 OF 2015

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J U D G M E N T

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Introduction

1.  With the leave granted by Au J on 27 April 2015, Hussain Tasawar (“HT”) now challenges a decision of Madam Betty Kwan acting as an adjudicator of Torture Petitions dated 7 November 2014 (“the Decision”). By the Decision, the adjudicator on behalf of the Torture Claims Appeal Board (“the Board”) rejected the application of HT to “reinstate” his appeal which had been “cancelled” (“the Application”) at his request on 2 July 2014.

2.  In the Decision, the adjudicator indicated that she refused the application of HT to “re-instate” the appeal on the ground that she/the Board was functus officio and there was no power to “re-open or re-instate” an appeal that had been “cancelled, withdrawn and/or abandoned”. In his judicial review, HT argues that as a matter of law the Board was not functus officio and did have the power to re-open his appeal.    

3.  HT joined the Director of Immigration (“the Director”) as an Interested Party. At the hearing, Ms Lau for HT had a good debate with Mr Law for the Director while the adjudicator was absent.

Background facts

4.  I can be brief about the background facts since the central question is a legal issue concerning the jurisdiction of the Board and there is no material factual dispute in this judicial review. A summary largely based on the skeleton submissions of Ms Lau is as follows.

5.  HT, a Pakistani national, submitted his non-refoulement claim form dated 16 April 2014 to the Immigration Department. The Director by a Notice of Decision dated 9 June 2014 notified him that his claim was found to be unsubstantiated and hence had to be rejected after two interviews conducted with him.

6.  HT then lodged his Notice of Appeal/Petition dated 19 June 2014 to appeal against the Director’s decision.

7.  However, on 15 July 2014, HT sent a handwritten letter to the Board and it read as follows:

“I request you to cancel my appeal. Please cancel my appeal against my rejected case. … Please reject my appeal now. I don't want to appeal. By mistakenly (sic) I do appeal (sic) but now I want to cancel that. Please accept my request as soon as possible.”

8.  Having received the letter of HT on 18 July 2014, the Board sent a letter dated 21 July 2014 (“the Letter”) to HT informing him that in light of his letter, his appeal/petition had been treated by the Board/adjudicator as one that had been disposed of, and consequently it had been finally determined. HT was also thereby notified that no further action would be taken in respect of his appeal/petition and his oral hearing scheduled for 26 September 2014 would be vacated.

9.  Apparently the Board received another letter from HT on 25 July 2014 which contained a repetition of his request to cancel his appeal. The Board reminded HT of the contents of the Letter in reply.

10.  On or about 28 July 2014, the Duty Lawyer Service (“DLS”) faxed a notice dated 23 July 2014 to the Board to inform it that HT had confirmed his decision to discontinue his appeal.

11.  On 14 August 2014, DLS however sent a fax to the Board to give notice of the intention of HT to proceed with his claim and hence it asked the Board to withhold deportation of HT.

12.  Further, on the following day, DLS wrote again to the Board again enclosing a letter of a duty lawyer who had interviewed HT in support of HT’s request to withdraw the previous withdrawal of his appeal/petition. The duty lawyer in her letter set out the reasons for the cancellation of the appeal/petition and the intended reinstatement of his appeal/petition.

13.  DLS and the duty lawyer repeated their effort by their letters dated 25 August 2014. As a result, the Board arranged a hearing for HT to make representations for his application to reinstate his appeal/petition (“the Hearing”). The adjudicated heard the testimony of HT and the legal submissions made by both parties on 7 October 2014 and 29 October 2014. The duty lawyer represented HT throughout.

14.  By the Decision consisting of 17 pages, the adjudicator refused HT’s application. She was unimpressed with the explanation of HT about his allegedly mistaken “cancellation” of his appeal/petition due to his alleged depression, which was not supported by medical evidence. The adjudicator opined that even if HT suffered from depression there was nothing to show that he did not know what he was doing when sending his letters and instructing the DLS to write to the Board to discontinue his appeal/petition.

15.  At the end, the adjudicator found that “HT acted with the knowledge and intention that his appeal against the Notice of Decision dated 9 June 2014 would no longer proceed and be heard, and that the consequence HT intended to happen was to bring his appeal procedure to an end.”(“the Factual Finding”)[1]

16.  It is remarkable that the Factual Finding is not challenged in the judicial review. HT does not ask the court to set aside his withdrawal and the Board’s acceptance of the same by way of the Letter. Nor is there any suggestion of the impropriety of the Factual Finding at this hearing at all.

The Decision and its legal basis

17.  After making the Factual Finding, the adjudicator proceeded to state the following conclusions in the Decision:

(1)  After HT applied to cancel/withdraw/abandon his appeal and the Letter was sent to him in reply, the appeal procedure was at an end and then the Board is functus officio.

(2)  After the appeal has been finally disposed of and determined, the only way is by way of a subsequent claim pursuant to section 37ZO of the Immigration Ordinance (“the Ordinance”). There is no delegated power for the Board to re-open or reinstate an appeal which has been cancelled, withdrawn and/or abandoned.

(3)  Sections 16 and 17 of Schedule A of the Ordinance cannot be used to enable the Board to re-instate an abandoned or withdrawn appeal.    

(4)  The Board is not a court but a creature created by statue and has no inherent jurisdiction.

(5)  The powers delegated by the Chief Executive pursuant to Article 48(13) of the Basic Law do not include inherent jurisdiction.

(6)  The Nullity principle as discussed in CACC 487/2002 cannot be adopted in a non-refoulement claim and in any event it is not a principle that is consistent with Part VIIC of the Ordinance.

18.  The adjudicator further held that there is no provision in Part VIIC of the Ordinance which can enable the Board to re-instate an appeal that has been abandoned or withdrawn.[2]

19.  Section 16 of Schedule 1A of the Ordinance provides that the Chairperson may give directions, generally or in a particular case, on the practice and procedure of the Appeal Board in hearing and determining an appeal, so long as the direction is consistent with Part VIIC. Section 17 gives the Board a general power to determine its own procedure in hearing an appeal.

20.  Section 38ZO imposes limitations on subsequent claims of a claimant. The combined effect of its subsections (1) and (2) is that a person who has previously made a torture claim must not subsequently make another torture claim unless he provides sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since the previous claim was finally determined or withdrawn and that the subsequent claim has a realistic prospect of success in light of such a change together with the materials previously submitted.

Analysis

21.  Before I deal with the legal challenges to the Decision mounted by Ms Lau, in my view, it is necessary to have regard to the nature of the Hearing and how the adjudicator reached her conclusions. I would first study in some detail the decision of the United Kingdom’s Asylum and Immigration Tribunal (“UKAIT”) in Ap v Secretary of State for the Home Department [2008] INLR 118 helpfully cited by Mr Law. I find the facts there not dissimilar to that of the present case.

22.  The facts of Ap can be outlined as follows. Ap was a Pakistan national seeking asylum and her application was refused in the first instance. She then lodged an appeal with the UKAIT. At the hearing on 8 August 2006 before Immigration Judge Mr Mulvenna, Ap, legally represented, withdrew her appeal through her solicitors orally. By a Notice of Decision of the same date, the judge accepted the withdrawal of Ap’s appeal.

23.  Shortly after the hearing, Ap changed her 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 her appeal. The UKAIT ordered a preliminary hearing to determine the validity of her withdrawal. Finally, Senior Immigration Judge Mackey and Immigration Judge Nicholson, after hearing all the evidence, concluded that the withdrawal was invalid and was a nullity. Ap’s appeal was hence allowed to proceed.

24.  The holding of the report gives an excellent summary of the reasons of the judges’ conclusions:

“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.

25.  Apart from the above, the following observations of Judge Mackey made in §58 of the judgment are also germane to the present case:

“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”

26.  Lastly Judge Mackey referred to R v Medway [1976] 1 QB 779. There the Court of Appeal accepted that the court had jurisdiction to grant leave to withdraw a notice of abandonment (withdrawal) of an appeal or application for leave to appeal only where the court was satisfied that the notice of abandonment was a nullity in the sense that the abandonment was not the result of a deliberate and informed decision. The immigration judges then concluded that this approach used in criminal courts should be adopted as the correct and consistent one to be taken by the tribunal.

27.  This is commonly known as the nullity principle and is frequently adopted by the criminal courts in Hong Kong. For example, the Court of Appeal in HKSAR v Lai Siu Cheung [2005] 1 HKLRD 1 applied this nullity principle and considered whether to treat the abandonment of an application for leave to appeal against sentence as a nullity by reason of its not being deliberate and informed. 

28.  Returning to the present case, it can be seen that though the adjudicator did not expressly refer to Ap, indeed she followed more or less the same approach in dealing with the application of HT. Even in the absence of an express provision in the Ordinance similar to r.57 of the English Rules, she treated the acceptance of his withdrawal as a potential procedure error. She allowed HT to contest the validity of his withdrawal at the Hearing. She heard live evidence and legal submissions as the UKAIT did at the preliminary hearing. She carefully considered the issue of validity of his withdrawal too.

29.  The difference is that whilst the adjudicator made the Factual Finding thereby upholding the validity of the withdrawal and hence the acceptance of the same by Board by the Letter, the UKAIT accepted the contentions of Ap and treated her withdrawal a nullity. Had the adjudicator not made the Factual Finding and instead found that the withdrawal was invalid due to the mental condition of HT, she would have treated his appeal as remaining extant and there would be no question of re-opening or reinstating his appeal in such a scenario. It was only with the Factual Finding that she decided that she had no jurisdiction to re-instate the appeal and considered herself functus offico.

30.  Notwithstanding such a difference and the differences between the relevant UK rules and the Ordinance, I do agree to the reasoning of the immigration judges in Ap regarding the applicable principles. There is no reason why the same principles should not apply here in light of the very similar nature of applications to be dealt with by the UKAIT and the Board. 

31.  With these principles in mind, I turn to the arguments of Ms Lau. She argues that the Board did have jurisdiction to re-open HT’s appeal/petition upon his application by reason of:

(1)  the express discretion under section 16 of Schedule 1A of the Ordinance; and/or

(2)  implied power to re-open torture claims; and/or

(3)  Article 48(12) of the Basic Law which delegates the power to the Board to handle petitions on non-refoulement claims in respect of all applicable grounds.

32.  For the ground based on section 16 of Schedule 1A, Ms Lau’s argument runs as follows. She first contends that whether an appeal that has been withdrawn can be re-opened is a matter of practice and procedure concerning the determination of an appeal. She argues that the withdrawal of an appeal is plainly not the same as the determination of an appeal. The appeal withdrawn by HT has not been determined yet and so the Board should exercise its jurisdiction under section 16 of Schedule 1A to deal with the application of HT to re-open his appeal as part of the determination of his appeal.

33.  I cannot agree to her submissions in light of Ap and the relevant provisions of the Ordinance.

34.  The Ordinance does not expressly provide an appellant with any right to abandon or withdraw his appeal. Nor is there any provision about how to withdraw or set aside such an abandonment or withdrawal. The procedure relating to withdrawal of an appeal however can be found in Principles, Procedures and Practice Directions of the Board (3^rd Ed, 7 October 2014).

35.  Section 37U provides the definitions of such terms found in Part VIIC. Section 37V is referred to for the definition of “finally determined”. Section 37V(1) provides that subject to the subsections, a torture claim is finally determined once a decision on the claim is made by an immigration officer under section 37ZI.

36.  Section 37V(2)(b) provides that for a torture claim rejected by a decision under section 37ZI(1)(b), as in the case of HT, the claim is finally determined when the appeal has been disposed of, if an appeal has been lodged against the decision.

37.  Thus, the issue is whether HT’s appeal has been disposed of without having been determined on its merits on account of his valid withdrawal of the same. In my view, it was disposed of by the Board when it accepted HT’s withdrawal by the Letter. First, the everyday usage of the English language shows that the definition of the phrase “disposed of” includes dealing with something in any way, as confirmed by the definition in Oxford English Dictionary (2nd ed.), Part IV p.820 referred to me by Mr Law.

38.  Moreover, taking a closer examination of the subsection, it presumes that there has been an appeal and it does not demand determination on its merits. It merely requires that the appeal has been disposed of. Obviously, it is not necessary that the appeal has to be determined on its merits; otherwise the legislation would make it clear. This makes perfect sense indeed.

39.  An appeal once lodged may not necessarily reach the final stage to have its substantive merits assessed and determined by the Board. To start with, an appellant must be allowed to abandon or withdraw his appeal. On the other hand, maybe against his wish, his appeal can be struck out on account of its non-compliance with the procedural requirements (which the Board is entitled to impose under section 16 of Schedule 1A) and thus fall by the wayside. If an appeal can only be disposed of by way of a final determination of its merits within the meaning of section 37V(2)(b), the absurd result is that the appeal will remain extant despite its being abandoned, withdrawn or struck out and there can never be a final determination of the claim despite the fact that it has been rejected at the first tier on its merits. This cannot be right.

40.  Therefore, though the appeal of HT has not been determined on its merits, it was disposed of by his withdrawal of the same and it follows that HT’s claim, which was rejected at the first tier, is deemed to be finally determined within the meaning of section 37V(2).

41.  Further, once the withdrawal of HT’s appeal was accepted by the Letter, his appeal has not gone into a state of suspended animation but simply ceased to exist. Section 16 of Schedule 1A is inapplicable as the appeal is no longer pending to be heard and determined by the Board.

42.  I agree with the adjudicator that the Board cannot rely on section 16 of Schedule 1A to re-instate a validly and effectively abandoned or withdrawn appeal. The adjudicator already held the Hearing to determine the validity of the withdrawal as a matter of practice and procedure. With the claim and the validity of the withdrawal having been finally determined, I agree with the adjudicator that the Board has no further function and is functus officio.

43.  In regard to Ms Lau’s argument that the Board has implied power to re-open torture claims, she first invites my attention to the fact that a court or tribunal has ancillary powers as are derivable by statutory implication and are required for the effective exercise of jurisdiction expressly conferred upon it. In PCCW HKT Telephone Ltd v Telecommunication Authority (2005) 8 HKCFAR 337 at §36 Bokhary PJ held that on the true construction of the Telecommunications Ordinance, Cap.106, the Appeal Board created thereunder had an implied discretionary power to suspend pending appeal as ancillary power derivable by statutory implication.

44.  Ms Lau also very fairly draws to my attention to the decision of Ouseley J in The Queen on the Application of Corbett v First Secretary of State [2005] EWHC 2433 where the judge did not accept that the Secretary of State had any implied power to reinstate an appeal having regard to the true construction of the Town and Country Planning Act 1990. The judge did not find any scope in the particular context for resorting to principles of private law to resolve difficulties created by the alleged lacuna.

45.  I agree with Ms Lau that the Board may have certain implied powers so as to carry out its functions under the Ordinance. However, I am not convinced that on the true construction of the Ordinance, the Board has implied power to re-open torture appeals which have been validly withdrawn.

46.  As I have concluded above, once the withdrawal of the appeal is accepted, the Board becomes functus officio. There is no basis to imply any further power to enable the Board to deal with the appeal again.

47.  In addition, the Ordinance clearly intends that a claim is considered finally determined once its appeal has been disposed of. This is to ensure finality. The alleged implied power would only defeat such purposes. If HT can fulfill the requirements of section 38ZO, he can make a subsequent claim now that his claim is finally determined within the meaning of section 37V(2). Of course whether he can satisfy the requirements is another matter but it is not really a matter of concern here. It is neither necessary nor desirable that the Board has such implied power to re-open torture claims after their appeals have been validly withdrawn.

48.  If indeed the Board had such implied powers, I can only expect serious abuses to avoid/delay deportation. Claimants may wait until their substantive hearings to abandon or withdraw their appeals. They could at any time argue that their appeals have not been determined on their merits and so apply to re-open their appeals afterwards. This would give rise to administrative chaos and create unbearable workload to the Board.

49.  Mr Law helpfully invites my attention to the following official documents which shows the statutory intent of a prompt and fair determination of torture claims and against abuse. Firstly, in the Legislative Council Brief of Immigration (Amendment) Bill 2011 dated 7 July 2011, there is an express concern about procedural abuse in the following terms (at §4):

“While maintaining high standards of fairness, the proposed legislation underpinning the enhanced screening mechanism will help reduce procedural abuse (e.g. claimants deploying delaying tactics by spanning out submission of evidence over a long period of time, repeated absence from interviews, reopening of claims after withdrawal, making subsequent new claims before removal, making false representations, etc.)

50.  Moreover, in the Report of the Bills Committee on Immigration (Amendment) Bill 2011dated 5 June 2012, it is stated that:

“Given that nay illegal immigrant or overstayer will be granted non-refoulement protection once he has made a torture claim unless and until his claim is finally determined as unsubstantiated or withdrawn, it is necessary to impose limitation on the making of subsequent claims. Otherwise, any person who is subject or liable to removal may easily abuse the mechanism by making repeated claims indefinitely to avoid being removed.”

51.  It is clear that on the true interpretation of the Ordinance, together with the said two documents explaining its statutory intents, finality and prevention against abuse are of key importance to the Board in handling torture claims. The suggested implied power runs counter to such intents and it cannot be derivable from statutory implication. I cannot accept Ms Lau’s submission on this score.

52.  Lastly, Ms Lau mentions Article 48(12) of the Basic Law but, quite sensibly in my view, does not say much about it. I fail to see how it can assist HT. The fact that the Basic Law empowers the Board to deal with torture claims cannot possibly lead to the conclusion that the Board can have unlimited inherent power and can even act when it is functus officio.

Conclusion and cost

53.  None of the grounds advanced on behalf of HT is substantiated. The Decision cannot be faulted. The adjudicator had no power to re-open the appeal given its valid withdrawal by HT and acceptance of the same by the Board. The judicial review falls to be dismissed.

54.  There is no reason why costs should not follow the event. HT should pay both the adjudicator and the Director their costs of and occasioned by his judicial review, to be taxed if not agreed. HT’s own costs is to be taxed in accordance with the Legal Aid Regulations.

55.  It remains for me to thank both Ms Lau and Mr Law for their able submissions.