GOMEZ GENEVIVE CANETE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 275/2024

[2024] HKCFI 2468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 275 OF 2024

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the followings:

  (1)  Determination by way of letter from the Board dated 6 November 2023 (“the Board’s Decision”); and

  (2)  Director of Immigration’s letter dated 10 November 2023 (“the Director’s Letter”).

2.  This application is late. However, I will extend time for the applicant to file Form 86 for the reasons below.

3.  The applicant appeared before the Court on 12 August 2024, a hearing adjourned from 12 June 2014. In the meantime, the Court has obtained some documents from the applicant.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6)  of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

5.  This application is connected with another application HCAL 485 of 2019 with the same applicant.  In HCAL 485 of 2019, the applicant’s application for non-refoulement was deemed to have been withdrawn because the applicant had failed to submit the non-refoulement claim form (“NCF”)  to the immigration officer despite repeated requests.  The applicant applied to the Director for re-opening of her non-refoulement claim. She had given reasons for her default, which the Director rejected. She appealed to the Board.

6.  By Decision dated 9 July 2018 (“the Board’s July Decision”), the Board dismissed the applicant’s appeal. The applicant applied to the High Court for judicial review of the Board’s July Decision.

7.  This Court, by its Order dated 6 April 2022, gave leave to the applicant to apply for judicial review of the Board’s July Decision.

8.  The parties came to a settlement and the matter was remitted to the Board for a fresh consideration as directed by this Court.

9.  Meanwhile, the applicant reported to Immigration Department and asked the immigration officer to return her passport to her so that she might apply to the Director for a dependent’s visa. The applicant was married to a Hong Kong citizen and they had a son in Hong Kong.

10.  According to the applicant, the immigration officer advised her to cancel her claims first before she could have her passport back.

11.  She prepared a letter of withdrawal in accordance with a sample given to her by the immigration officer. She submitted her application to the Board to withdraw her appeal.

12.  By letter dated 17 August 2023 [exh. E of the applicant’s affirmation], the Board approved her application for withdrawal and said it was satisfied that her application was freely sought and that there was good reason for her proposed withdrawal of her appeal/petition, namely, that is safe for her to return to the Philippines. The Board further said that no further action would be taken by the Board in respect of her appeal/petition.

13.  However, the immigration officer did not return her passport to her. The applicant then came to know that she could not depend on her son to apply for dependent’s visa.

14.  The applicant then wrote to the Director by letter which was received by the Immigration Department on 3 November 2023 [see exhibit C of the applicant’s affirmation], stating that she would withdraw her application for her passport and also her application to withdraw her application to appeal/petition to the Board.

15.  By the Director’s Letter, the Director told the applicant that on 17 August 2023, the Board had given direction that her appeal/petition was withdrawn and further said that no action would be taken at that stage.

16.  By another letter dated 30 October 2023, the applicant requested the Board to re-open her appeal/petition.

17.  By the Board’s Decision, the Board said:

“We refer to your letter dated 30 October 2023 and our previous letter to you on 24 August 2023 concerning your appeal/petition against the decision of the immigration officer in relation to your non-refoulement claim.

Please note that by the Board’s letter of 17 August 2023, your request to withdraw the appeal/petition was confirmed; this decision of the Board/Adjudicator is final; and your appeal/petition has now been disposed of and finally determined by the Board. No further action will be taken by the Board in respect of your appeal/petition.”

DISCUSSION

18.  It is quite clear that the outstanding issue in this case is whether the Director’s decision not to re-open her claim because of her failure of submitting the NCF to the immigration officer can sustain. The Board had made its decision by way of the Board’s July Decision.  However, this factual issue remains unsolved as this Court had given leave for judicial review of the Board’s Decision. The reason for this Court to grant leave to the applicant for judicial review of the Board’s Decision is that the Board had overlooked the lawyer’s letter, in which the lawyer explained why the applicant was unable to submit the NCF. Since the applicant withdrew her appeal, this factual issue remained unsolved.

The Director’s Letter

19.  In my view, the Director’s Letter is not subject to judicial review because the crux of the problem remains in the Board’s decision on whether the Director was correct not re-opening her claim.  In the Director’s Letter, the Director said that no action would be taken at this stage. This decision cannot be faulted as the matter still lies within the jurisdiction of the Board by way of an appeal.

20.  For this reason, the applicant’s application against the Director’s Letter is dismissed.

The Board’s Decisions

21.  In the Board’s letter dated 6 November, the Board said that the Board’s decision is final. On this basis, the Board decided that no further action would be taken by the Board in respect of the appeal.

22.  It is clear that the Board relied upon section 23 of Schedule 1A of the Ordinance, which provides:

“23. Appeal Board’s decision

(1)  On an appeal against a decision referred to in section 37ZR, the Appeal Board may confirm or reverse the decision.

(3)  The Appeal Board must give its decision with reasons in writing.

(4)  The Appeal Board’s decision is final.”

23.  Section 37ZR refers to the Director’s Decision not to re-open the applicant’s claim after consideration of the applicant’s explanation for her default under section 37ZG(3)  of the Ordinance[1].

24.  The Court of Appeal in Re Das Purnima Rani [2019] HJKCA 669, Hon Yuen JA and Lisa Wong J, 13 June 2019 held:

“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. … 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.”

25.  The Board, in its letter dated 17 August 2023, said that it was satisfied that the applicant made the application “was freely sought”. This letter was written without the subsequent allegations of the applicant that she was misled by the immigration officer.

26.  The applicant had made her request to the Board on the basis that she did not make her application for withdrawal out of her free will. She alleged that she was misled by the immigration officer. In my view, on this very limited issue, the Board retains its power to consider her request because this limited issue is not covered by section 23 of Schedule 1A of the Ordinance, which deals with the merit of her claim. If the Board accepts the applicant’s reasons in support of her request, the applicant’s withdrawal will become a nullity.  It should allow her to re-instate her appeal.

27.  In my view, the Board’s decision that its decision on the limited issue is final is an error in law.

28.  The Court of Final Appeal in the case of Singh Harbans v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [[2023] HKCFA 43, Mr Justice Fok PJ, Mr Justice Lam PJ and Mr Justice Bokhary NPJ held.

“8. … …If an applicant has properly raised the issue of whether he had been misled into withdrawing his appeal, albeit of his own volition, it would be necessary for the decision maker to consider the validity of that allegation and whether, if made out, it rendered the withdrawal a nullity notwithstanding that it was voluntary. As we have already indicated, no factual basis for such an allegation has been properly raised in this case. However, insofar as an allegation of this nature might be raised on a future occasion (and admittedly this is likely to be rare), the correct approach would be for the Board to consider the validity of the withdrawal by assessing the evidence and making relevant findings of fact before ruling on whether the withdrawal was valid or not. Alternatively, if the raising this point, it would be a question for the judge to decide whether to direct the Board to do so.

9. We therefore take this opportunity to note the correct approach that should have been adopted had the allegation that the applicant was misled into withdrawing his appeal to the Board been properly raised.”

DISPOSITION

29.  I extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision and, in accordance with the Court of Final Appeal’s direction, I further direct that this matter is referred to the Board to make investigation into the issue of the applicant’s voluntariness in her application for withdrawal of her appeal.

30.  In the event that the Board agrees to re-open her appeal, it is unnecessary for the Board to refer the case to this Court and it may deal with the applicant’s appeal accordingly.

31.  In the event that the Board, having made the investigation as directed, concludes that the applicant withdrew her appeal of her free will without any undue influence from the immigration officer as she alleged, then unless the applicant agrees to withdraw her application for judicial review of the Board’s Decision, the matter should be referred to this Court with the Board’s report on its investigation.