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HCAL 1539/2022
[2026] HKCFI 1368
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1539 OF 2022
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BETWEEN
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Faisal Iqbal Rana |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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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 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 and filed on 20 December 2022, 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 3 May 2022 (“the Board’s Decision”).
2. The Board found that the applicant’s non-refoulement claim were not made out on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 28 May 2021, which rejected the applicant’s non-refoulement claim.
The applicant’s case
3. The applicant claimed for non-refoulement protection because if refouled to Pakistan, he feared being harmed or even killed in connection with a property dispute and related vendetta by some paternal relatives and their political and criminal associates.
Late application
4. By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.
5. However, the applicant filed Form 86 on 20 December 2022, which was more than 7 months after the Board’s Decision (made on 3 May 2022). The applicant was hence late for more than 4 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.
6. As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
(i) the length of the delay;
(ii) the reason for the delay;
(iii) the merits of the intended application; and
(iv) any prejudice to the putative respondent and to public administration.
7. The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.
8. Thus, there is simply no reason for this court to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.
Withdrawal of the Leave Application
9. On 18 August 2025, the applicant filed an ex-parte application by way of his affirmation dated the same date to withdraw the Leave Application. However, he only mentioned that he wanted to go back to his country but did not indicate that it was safe for him to return or his problems in his home country had been resolved.
10. Nevertheless, on 16 October 2025, the Director informed this court that the applicant had written a letter dated 14 October 2025 to withdraw the Leave Application. There were in fact two letters written by the applicant on 14 October 2025, one addressed to the Director and the other addressed to the Registrar of the High Court. In the applicant’s said letter to the Registrar of the High Court, the applicant stated that he wanted to return to his home country and his issues in his home country had been resolved.
11. The Director also informed this court on 24 November 2025 that the applicant had been removed during the period from 10 November 2025 to 16 November 2025.
12. There is no evidence to show that the applicant made the above 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 of the Leave Application even though he had previously requested one.
13. 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.”
14. 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
15. It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that his issues in his home country had been resolved. In other words, the basis of his non-refoulement claim no longer exists.
16. It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.
17. 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).
18. 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).
19. 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
20. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 11th day of March 2026
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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 the applicant’s 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:
11 March 2026
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: 11 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 18025/21/6/3/P3459
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 747/20
(formerly RBCZ 10632/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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