SITI MAESAROH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1561/2023

[2026] HKCFI 3147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1561 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.  On this court’s own motion, “Torture Claims Appeal Board” be added as the putative respondent, the name of the putative interested party be amended to “Director of Immigration”, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 20 June 2023”.

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 4 September 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 12 October 2020 without identifying the decision-maker.

2.  However, the applicant attached a copy of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 June 2023 (“the Board’s Decision”) to her supporting affirmation dated 4 September 2023, which shows that the date of the hearing before the Board was on 12 October 2020. It is clear that the applicant made a mistake about the date of the Board’s Decision and used the date of the hearing before the Board as the date of the Board’s Decision in Form 86. Thus, the subject matter of the Leave Application should be the Board’s Decision.

3.  The Board found that the applicant failed to establish her non-refoulement claim on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 17 June 2020 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendments

4.  In Form 86, the applicant did not name any putative respondent and named both the Board and Non-refoulement Claims Petition Office as the putative interested parties, when the Board should be the putative respondent and the Director should be the putative interested party.

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative interested party at all.

6.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.

7.  Thus, on this court’s own motion, “Torture Claims Appeal Board” is added as the putative respondent, the name of the putative interested party is amended to “Director of Immigration”, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 20 June 2023”.

The applicant’s case

8.  The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her ex-husband’s current wife.

Withdrawal of the Leave Application

9.  Before the Leave Application was dealt with, the applicant filed an ex parte application by way of her affirmation dated 18 May 2026 to withdraw the Leave Application. In her affirmation, the applicant stated that her problem had been solved and her life was safe in her home country.

10.  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.

11.  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.”

12.  Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the Leave Application.

Discussion

13.  It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that it was safe for her to return to her home country. In other words, the basis of her non-refoulement claim no longer exists.

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

15.  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).

16.  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).

17.  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

18.  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