ISMAHIL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 621/2020

[2025] HKCFI 2214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 621 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

1.  The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent;

2.  Application to withdraw the application for leave to apply for Judicial Review be granted; and

3.   Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  By a Form 86 dated and filed on 14 April 2020 (“Form 86”), which was supported by a supporting affirmation also dated and filed on 14 April 2020 (“the Affirmation”), the Applicant sought leave for judicial review of a decision of an Adjudicator of the Torture Claims Appeal Board (“Adjudicator” and “TCAB” respectively) made on 20 March 2020 (“the TCAB Decision”) [1].

2.  The Applicant’s Form 86 names the Adjudicator as the putative respondent, and the Director of Immigration (“DOI”) as a putative interested party. I have therefore amended the Form 86 of my own motion to name the TCAB/Non-Refoulement Claims Petition Office as the only putative Respondent.

3.  The Applicant, in his papers, requested an oral hearing of his leave application and hence appeared before me at at such.

4.  At the oral hearing, the Applicant said he wanted to withdraw the application for leave and his case, as he wanted and needed to return to his country, since the political problems there had been “sorted out”.

5.  There was before me no indication that the withdrawal was made other than out of his own accord, volition, and free will. Indeed, at the oral hearing, he said he had told the Immigration Department that he wished to return to his country, who had responded by saying that he needed a letter, or official paper, from the court to withdraw his case before he was allowed to go. He hence asked for such a document to be provided to him within 10 days of the oral hearing so that he could provide it to the Immigration Department.

6.  I therefore accede to the Applicant’s request to withdraw his application for leave, without adjudicating on the merits of the application for leave. As I do not consider that there is anything outstanding, and the action should not be left at large, I hence further order that the leave application be dismissed: see Re Manik MD Mahamudun Nabi [2022] HKCA 471 at paragraph 19; Luu Van Hoc v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2023] HKCA 653 at paragraph 25; Ferrolino Jasmin Puno v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2023] HKCA 1073 at paragraph 16; Ngo Xuan Tuyen v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2024] HKCA 1140 at paragraphs 7 and 14; Re Nguyen Thi Lo [2023] HKCA 1141 at paragraph 11.

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