SHAGOR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

SHAGOR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

The re-opening application is refused because the applicant's withdrawal of his leave application was a deliberate and informed decision; therefore the court is functus officio and lacks jurisdiction to re-open the withdrawn application absent evidence of vitiating factors such as mistake, misrepresentation or duress.

Citation
[2023] HKCFI 272
Parties
Applicant: Shagor; Putative Respondent: Torture Claims Appeal Board / Non-refoulement Claims Petition Office; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 February 2023
Case Number
HCAL772/2019
Procedural Posture
Judicial Review (leave Application) / Application to Re Open Withdrawn Leave Application
Outcome
Application to re-open refused; court declared functus officio
Legal Topics
Re Opening Withdrawn Application, Functus Officio, Withdrawal of Proceedings, Judicial Review Grounds (errors of Law, Procedural Unfairness, Irrationality)
Source Language
EN
Constitutional and Administrative Law Immigration Non Refoulement Procedural Law Re Opening Withdrawn Application Functus Officio Withdrawal of Proceedings Judicial Review Grounds (errors of Law, Procedural Unfairness, Irrationality)

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Parties

Shagor

Applicant

Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Judicial Review (leave Application) / Application to Re Open Withdrawn Leave Application

Legal Issues

  1. 1 Whether a court may re-open a leave application that was previously withdrawn
  2. 2 Whether the withdrawal was a deliberate and informed decision
  3. 3 Whether continued risk in the home state can justify setting aside a withdrawal

Ratio Decidendi

The re-opening application is refused because the applicant's withdrawal of his leave application was a deliberate and informed decision; therefore the court is functus officio and lacks jurisdiction to re-open the withdrawn application absent evidence of vitiating factors such as mistake, misrepresentation or duress.

Court Disposition

Application to re-open refused; court declared functus officio

Orders

  • Application to re-open refused
  • Leave application remains withdrawn and the Board's decision remains in force