RE PATWARY MEZBA UDDIN OPU

HCAL 240/2019

[2021] HKCFI 3520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 240 OF 2019

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decision (the “Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By letter, the applicant applied to withdraw his application because he wanted to close his case and return to his country.

4.  By Form CALL-1 dated 7 July 2021 (the “Court’s decision”), the Court acceded to his request and dismissed his application since there is no purpose for his application.

5.  The applicant filed a summons on 29 October 2021 for appeal against the Order out of time.

6.  In his affirmation in support of his application, he said that it is still dangerous for him to return to his country. He asked for extension of time to appeal against the Court’s decision.

Discussion

7.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

8.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

9.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

10.  I shall therefore first consider the merits of his intended appeal.

11.  Since the Court’s decision was made upon his own request, there is nothing that he can appeal against.

12.  There is no realistic prospect of success in his intended appeal. I therefore dismiss his application.