Re Mohammad Kamal Howlader

HCAL 3768/2019

[2023] HKCFI 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3768 OF 2019

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

Date of Decision:  5 January 2023

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D E C I S I O N

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1.This is the applicant’s application to appeal against the Decision dated 27 September 2022 (“the Court’s 1^st Decision”), dismissing his application to appeal out of time the Court’s decision in Form CALL-1 dated 11 July 2022, which dismissed his application for judicial review application upon his application for withdrawal.

2.In his affirmation in support of his application, the applicant has not stated any reason. The procedural history of his applications is set out below.

3.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 (the “Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

4.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.

5.However, the applicant filed an affirmation on 23 May 2022 to cancel his application.

6.In accordance with 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]

7.His application was therefore dismissed by an Order of the Court dated 11 July 2022 (the “Court’s Order”). Since his application has been dismissed upon his application, there is no reason for the applicant to appeal against the Court’s Order. His application is therefore dismissed by the Court’s 1^st Decision.

8.Since the applicant has no reason in support of his application, his application is dismissed.

9.This decision is the Court’s 2^nd Decision.

The applicant was unrepresented.