TATY DESI YANAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1716/2023

[2026] HKCFI 891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1716 OF 2023

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 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 and filed on 25 September 2023, 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 20 September 2023 (“the Board’s Decision”).

2.  The Board found that the applicant was unable to make out her claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board rejected her appeal/petition against the decision of the Director of Immigration (“the Director”) dated 20 July 2022 and confirmed the same.

The applicant’s case

3.  The applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared she would be targeted and consequently harmed, ill-treated and/or killed by the moneylender from whom her father had taken out a loan as her father could not repay the loan.

Withdrawal of the Leave Application

4.  Before the Leave Application was dealt with, the Director notified this court by way of a letter dated 18 November 2025 that the applicant had written a letter dated 13 November 2025 to withdraw the Leave Application. In the applicant’s said letter, she also stated that she wanted to return to her home country as soon as possible and her issues in her home country had been resolved.

5.  On 24 December 2025, the Director informed this court that the applicant was removed during the period from 15 December 2025 to 21 December 2025.

6.  There is no evidence to show that the applicant made the withdrawal application other than out of her own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though she had previously requested one.

7.  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.”

8.  Thus, it is not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the Leave Application.

Discussion

9.  It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that she wanted to return to her country and her issues had been resolved. In other words, the basis of the applicant’s non-refoulement claim no longer exists.

10.  It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.

11.  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).

12.  Even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection as it was no longer unsafe for her to return to her own country. The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743).

13.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review even if there were merits in it. Thus, the Leave Application ought to be dismissed.

Conclusion

14.  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

Form CALL-1