RE MD SHAH ALAM

HCAL 1892/2019

[2022] HKCFI 3220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1892 OF 2019

_____________

_____________

_____________

D E C I S I O N

_____________

The application

1.  The applicant is an illegal immigrant for staying in Hong Kong without permission 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, 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.  However, he applied to withdraw his application because he said that he had no problem and he wanted to return to his country.

4.  By Form CALL-1 dated 23 March 2022 (the “Court’s decision”), the Court acceded to his application and dismissed his application, relying on the decision of the Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015:

“It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7^th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5^th ed) at §18.18.1) ….” [67]

5.  As it would serve no practical purpose for his application, the Court should refuse to grant him the remedy and the applicant’s application was dismissed.

6.  The applicant filed a summons on 10 October 2022 for appeal against the Court’s decision out of time.

7.  In his affirmation in support of his application he said he applied to withdraw his application because his family confirmed to him that his problems had been solved. In fact, his enemy intended to kill him and they just put up a drama to mislead his family. He therefore does not want to return to return home.

Discussion

8.  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.

9.  As the applicant applied to withdraw his application on his own volition, the Court has no jurisdiction over this matter once an Order had been made to dispose of his application.

10.  The applicant has failed to raise any valid reason to show that there is any realistic prospect of success in his intended appeal.

11.  In the circumstances, I refuse to extend time for the applicant to file his notice of appeal. Accordingly, I dismiss his application.