Hossain Mohammad Rahat v. Director of Immigration

HCAL 70/2023

[2023] HKCFI 690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 70 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The applicant is an illegal immigrant by overstaying. He lodged non-refoulement claim with the Immigration Department and was rejected by the Director of Immigration (“the Director”). He appealed to the Torture Claims Appeal Board (the “Board”) and, by the Board’s Decision, his appeal was dismissed. In his previous application HCAL 368 of 2017 (“previous claim”), he had made an application for judicial review of the Board’s Decision to the Court of First Instance. When failed, he appealed to the Court of Appeal and finally to the Court of Final Appeal. All his applications were dismissed.

2.He then made a subsequent claim with the Director. By Notice of Decision dated 28 November 2022 (“the Director’s Decision”), the Director rejected his application for subsequent claim.

3.The applicant filed Form 86 on 17 January 2023 for leave to apply for judicial review of the Director’s Decision. The Court considered that the applicant had abused the proceedings by relying on the same facts in the previous claim to make the subsequent claim and was minded to impose a restrictive proceedings order (“RPO”) on the applicant. The Court had fixed the hearing date on 15 February 2023 for the applicant to make submissions on whether RPO should be imposed on him.

4.Before the Court, the applicant applied to withdraw his application because he wants to go back to his country as it is safe for him to do so.

5.In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

“(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.”

6.The application is therefore dismissed. The applicant has been warned that RPO will be imposed on him.

Dated the 17^th day of March 2023.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1