MD KALAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 3024/2019

[2025] HKCFI 5766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3024 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 in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 14 October 2019, 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 27 June 2018 (“the Board’s Decision”).

2.  By a letter dated 25 June 2018, the applicant notified the Board the withdrawal of his appeal against the decision of the Director of Immigration (“the Director”) dated 12 March 2013 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim. In the Board’s Decision, which was issued in the form of a letter, the Board directed that the applicant’s appeal was withdrawn, and the Director’s Decision was confirmed.

Amendments

3.  In Form 86, the applicant did not name the putative respondent and the putative interested party correctly. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

4.  The applicant claimed for non-refoulement protection because if refouled to India, he would be harmed by Rajesh due to his relationship with Rajesh’s sister, and by Suleman since Suleman wanted to occupy the land of the applicant’s father.

Withdrawal of the Leave Application

5.  By his affirmation dated 14 November 2019, the applicant applied to withdraw the Leave Application because all his problems in his country were solved and he wanted to go back to his country.

6.  On 13 November 2024, the Director informed this court that the applicant was removed on 5 December 2019.

7.  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.

8.  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.”

9.  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

10.  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 solved. In other words, the basis of the applicant’s non-refoulement claim no longer exists.

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

12.  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).

13.  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).

14.  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

15.  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