Case Document

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HCAL 260/2019

[2022] HKCFI 3587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 260 OF 2019

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RE:

ANWAR NOMAN

Applicant

_____________

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

Date of Decision: 15 December 2022

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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 28 January 2019 to apply for leave to apply for judicial review of the Board’s Decision.

3.By affirmation filed on 19 October 2021, the applicant applied to the Court to withdraw his application, saying that his conflict in Pakistan has been resolved and he is hoping to return to Pakistan.

4.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 (7th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5th ed) at §18.18.1)….” [67]

5.As the applicant has no problem in his country, the Court should refuse to grant him the remedy and the applicant’s application should be dismissed.

6.By Order dated 25 November 2021 (“the Court’s decision”), the Court acceded to his request and dismissed his application.

7.The applicant filed a summons and an affirmation on 4 November 2022 for leave to appeal against the Court’s decision out of time.

Discussion

8.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.

9.The Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19 held:

“(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.”

10.Since it was the applicant’s application to withdraw his application and the Court acceded to his request, there is nothing that the applicant can appeal against.

11.The application is therefore dismissed.