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HCAL 172/2024
[2025] HKCFI 5674
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 172 OF 2024
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BETWEEN
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Lestari Marshello Chamling Rai (a minor)
by Lestari, Winda, his next friend |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. The name of the applicant be amended to “Lestari Marshello Chamling Rai (a minor) by Lestari, Winda, his next friend”.
2. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.
3. 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 17 January 2024, 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 13 December 2023 (“the Board’s Decision”).
2. The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 21 June 2023 and confirmed the same.
The applicant’s case
3. The applicant is a child born on 31 October 2022 in Hong Kong. The applicant’s mother, Lestari, Winda (“the Mother”), is a citizen of Indonesia.
4. The Mother made a non-refoulement claim on the applicant’s behalf because if removed to Indonesia, the applicant would be in danger as the Mother owed a debt to a loan shark and her husband might kill the applicant, because the applicant is a child of another man.
Amendment
5. In Form 86, the Mother named herself as the 1st applicant and the applicant as the 2nd applicant. However, as the Mother is making a claim on behalf of the applicant, she should not be named as one of the applicants.
6. The proper title for the applicant should be “Lestari Marshello Chamling Rai (a minor) by Lestari, Winda, his next friend”. Hence, the name of the applicant is so amended on this court’s own motion.
Waiving irregularity
7. By virtue of Order 80, rule 2(3) of the Rules of the High Court, a next friend of a minor must act by a solicitor. However, the Mother is not legally represented.
8. As discussed below, since the Mother had confirmed that it was safe for her and the applicant to return to Indonesia and would like to cancel all their non-refoulement claims including the Leave Application, this court is prepared to waive the irregularity of the Mother not being legally represented and proceed to deal with the Leave Application.
Withdrawal of the Leave Application
9. By a letter to this court dated 26 September 2024, the Director informed this court that the Mother had written a letter dated 9 September 2024 to cancel the applicant’s non-refoulement claim including the Leave Application, as she and the applicant wanted to go back to their home country as soon as possible and it was safe for them to go back.
10. By a further letter dated 9 September 2025, the Director informed this court that the applicant was removed on 6 December 2024.
11. There is no evidence to show that the Mother on the applicant’s behalf made the above withdrawal application other than out of their own volition. With the withdrawal application, it is clear that the Mother on the applicant’s behalf no longer wishes to proceed with 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 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
14. It is not necessary for this court to discuss the merits of the intended judicial review any more, as the Mother on the applicant’s behalf had confirmed that it was safe for them to go back to their home country. In other words, the basis of the applicant’s non-refoulement claim no longer exists.
15. It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.
16. 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).
17. 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 him to return to his 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).
18. 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
19. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 19th day of November 2025
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(Irene LEE)
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors on:
19 November 2025
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
19 November 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 21869
USM 21162
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 198/23
(formerly RBCZ 5000168/23)
QA T/C 1028/22
(formerly RBCZ-5000890-22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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