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

HCAL 2591/2018

[2023] HKCFI 560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2591 OF 2018

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D E C I S I O N

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1.  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.

2.  The applicant filed Form 86 on 19 November 2018 for application for leave to apply for judicial review of the Board’s Decision.

3.  The applicant filed an affirmation on 14 November 2022 stating that he wanted to withdraw his application because his problem was solved in his country. He wanted to go back my country as his mother was very sick.

4.  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.”

5.  By the Court Order dated 30 December 2022 (“the Court Order”), the applicant’s application was dismissed.

6.  The applicant filed a summons and an affirmation on 13 February 2023 to apply for extension of time to appeal against the Court’s Order on the ground that he did not receive the Court Order.

7.  According to the court’s record, the Court Order was sent to the last known address of the applicant on 30 December 2022 and was never returned from the Post Office. Since the applicant, on his own volition, applied for withdrawal of his application; and the court, having acceded to his request and dismissed his application for leave to apply for judicial review of the Board’s Decision, the Court has not further jurisdiction to deal with his application for extension of time for appeal. In fact, there is nothing that the applicant can appeal since it is his own wish to withdraw his application.

8.  I dismiss his application.