LUBEGA ISIMA v. TORTURE CLAIMS APPEAL BOARD

HCAL 3395/2019

[2025] HKCFI 5277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3395 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.   The applicant’s application for leave to withdraw the application for leave to apply for judicial review be refused.

2.    The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 15 November 2019 and amended on 28 August 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 21 October 2019 (“the Board’s Decision”).

2.  The Board rejected the applicant’s non-refoulement claim as not substantiated on all the applicable grounds under the Unified Screening Mechanism.  Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 31 December 2018 (“the Director’s Decision”).

The applicant’s case

3.  The applicant claimed for non-refoulement protection because if refouled to Uganda, he would be killed or persecuted by Muslims or the police as he had a homosexual relationship with a Mr K.

Procedural history

4.  The applicant’s case first came up for an oral hearing on 24 June 2025.  The applicant was represented by counsel who applied for an adjournment to amend the applicant’s grounds for the intended judicial review in Form 86, which was acceded to by this court.  

5.  The case then came up for another oral hearing on 21 August 2025 and leave to amend Form 86 was granted.  However, the applicant appeared in person on this occasion and requested to have the service of an interpreter.  The case was therefore adjourned to 11 November 2025 in order to arrange an interpreter for the applicant.

6.  After the case was adjourned, the Director of Legal Aid filed a Memorandum on 1 September 2025 to inform this court that the applicant was applying for legal aid.

7.  However, on 11 September 2025, the applicant filed an affirmation to withdraw his case as the Immigration Department had given him a dependent visa.

8.  On 9 October 2025, the Immigration Department informed this court that the applicant was removed out of Hong Kong during the period from 29 September 2025 to 5 October 2025.

9.  The Director of Legal Aid also filed a Memorandum on 10 October 2025 to inform this court that the applicant’s legal aid application was refused.

10.  As the applicant had applied for withdrawal of the Leave Application and left Hong Kong, it is clear that the oral hearing fixed on 11 November 2025 will not serve any useful purpose.  Thus, this court vacated the hearing fixed on 11 November 2025 and proceeded to deal with this case on paper only.

Discussion

11.  There is no evidence to show that the applicant made the said withdrawal application other than out of his own volition.  With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application.

12.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“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.”

13.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large by granting leave to withdraw the Leave Application to the applicant.

14.  On the other hand, there is no need for this court to deal with the merits of the intended judicial review either.  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 (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

15.  As the applicant has been granted a dependent visa, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.  It is therefore otiose and pointless to consider the merits of the Leave Application or to grant leave to the applicant to proceed with the intended judicial review.

16.  In the premises, this court exercises its discretion not to grant any remedy to the applicant and the Leave Application ought to be dismissed.

Conclusion

17.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

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

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