Case Document

100%Judiciary

HCAL 3847/2019

[2021] HKCFI 1541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3847 OF 2019

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RE:

JAHANGIR MOHSIN

Applicant

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Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

16 June 2021

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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 rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision dated 20 December 2019 (“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 dated 24 December 2019 to apply for leave to apply for judicial review of the Board’s Decision.

3.By affirmation dated 30 March 2021, the applicant applied to this Court to withdraw his judicial review application, saying that his problems in Pakistan has been solved and his mother is suffering from the last stage of cancer. He can go back to his own country.

4.By Order dated 12 April 2021 (“the Court’s decision”), the Court acceded to his request. Since he had no intention of carrying on with his judicial review application, the Court dismissed his application.

5.The applicant intends to appeal to the Court of Appeal against the Court’s decision. However, he is out of time under Order 53, rule 3(4) of the RHC. He filed a summons dated 10 May 2021 for extension of time for his appeal and for leave to advance new ground of appeal.

6.In his affirmation in support of his application, the applicant said that he had withdrawn his application on 30 March 2021, thinking that his problems were solved. But he was wrong and his life is still in danger in Pakistan. He asked the court to re-open his case.

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 without an oral hearing.

8.My decision of dismissing his application for leave to apply for judicial review was based on the circumstances at the time of his application for withdrawal of his application. I do not think that I was in error in making the Court’s decision. 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].”

9.Once his application has been dismissed, there is no jurisdiction under Order 53 of the RHC to re-open his application.

10.He has no valid reason in support of his application for an extension of time for his intended appeal.

11.In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision. I refuse to extend time for his appeal and leave for advancing his ground of appeal. I also refuse to grant him leave to advance new ground of appeal. Accordingly, I dismiss his application.