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HCAL 2230/2020
[2024] HKCFI 1421
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 2230 of 2020
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BETWEEN
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Mohammed Rabaa Tuahir |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: |
14 June 2024 |
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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 by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director 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 on 6 November 2020 to apply for leave to apply for judicial review of the Board’s Decision.
3. The applicant then filed an affirmation on 19 December 2022, stating that he had no problem in his country and he wanted to go back home. This is tantamount to an application for withdrawal of his application.
4. By Order dated 14 April 2023 (“the Court’s decision”), the Court dismissed his application because there was nothing outstanding at that time. The Court’s decision was sent to the applicant’s last known address without being returned from the Post Office.
5. By summons filed on 12 April 2024, the applicant applied for appeal against the Court’s decision out of time.
6. In support of his application, the applicant filed an affirmation, in which he said he did not receive the Court’s decision.
Discussion
7. Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing.
8. As to his allegation of not receiving the Court’s decision, the Court sent the Courts’ decision to his last known address without return from the Post Office. The applicant is deemed to have received the Court’s decision.[1]
9. Upon the applicant’s application to withdraw, the Court dismissed his leave application. The Court’s decision has been sealed. As such, the Court has no further jurisdiction to deal with this application.
10. I dismiss his application.
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(K.W. Lung)
Deputy High Court Judge
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The applicant was unrepresented
[1] Under section 37 ZV of the Ordinance:
Notices
(1) A notice or other document (howsoever described) required to be served or given (howsoever described) by the Director, an immigration officer or the Appeal Board on or to another person under this Part may be served on or given to that other person—
(a) …;
(b) by leaving it for the person, or by sending it by post addressed to the person—
(i) if the person is a claimant, at the last known residential or correspondence address provided by the claimant
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