Re Mohammed Khan Shamim

HCAL 173/2020

[2022] HKCFI 3533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 173 OF 2020

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Before:  Deputy High Court Judge K.W. Lung in Chambers

Date of Decision: 1 December 2022

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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 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 to apply for leave to apply for judicial review of the Board’s Decision.

3.By Order dated 9 September 2021 (“the Court’s decision”), the Court dismissed his application upon the applicant’s application for withdrawal of his application. He had stated the reasons for his withdrawal. He said that his problems had been solved and he wanted to return to his country.

4.The Court dismissed his application on the authority of the Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 said:

“67. 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 (7th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5th ed) at §18.18.1)….”

5.The applicant filed a summons on 16 November 2022 applying for re-instate and restore his application. In his affirmation in support of his application he said that he relied on false news to withdraw his application and his problems still exist in his country and his life is still in danger if he returns to his country.

6.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.

7.Since his application was dismissed upon the applicant’s application and the Order for dismissal has been sealed, the Court has no jurisdiction to restore it.  His application is therefore dismissed.

The applicant was unrepresented.