RE MD AL AMIN

HCAL 1102/2019

[2022] HKCFI 3704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1102 OF 2019

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D E C I S I O N

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1.  The applicant applied to this Court for reinstating his application for leave to apply for judicial review, which he had withdrawn previously.

2.  The applicant is an illegal immigrant by staying in Hong Kong without permission of the Director of Immigration. He lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration. He appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, his appeal was dismissed by the Board.

3.  The applicant filed Form 86 on 24 April 2019 for application for leave to apply for judicial review of the Board’s Decision.

4.  The applicant sent to court a letter dated 25 August 2022 to withdraw his application because he wants to go back to his country as he has no problem there.

5.  In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

“(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

6.  The application was therefore dismissed by the Court’s Form CALL-1 dated 6 September 2022.

7.  The applicant has filed a summons on 22 November 2022 for reinstating and restoring his application. In his affirmation in support of his application, the applicant said:

“I seek relief that this [sic] proceedings be reinstated and restored as I had withdrawn the proceedings inadvertently.”

8.  Since the Order for dismissal of his application has been sealed, this Court has no further jurisdiction to entertain his application for reinstating or restoring his application, unlike a situation where the court has to clarify its sealed order as decided by the Court of Final Appeal in Man Ping Nam and Man Ying Lam v Man Fong Hang (the surviving administrator of the estate of Man Hou Hei (2007) 9 HKCFAR 674, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Lord Scott of Foscote NPJ, 16 February 2007:

“11. In the absence of any prejudice to the other party (in which event discretionary considerations may come into play), it matters not that an application for such clarification is made after the Court’s order has been sealed since it operates to make plain what the Court has in fact already decided. It does not involve the Court acting when functus officio.”

9.  In the circumstances, I dismiss his application.