LESTARI, WINDA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1728/2023

[2025] HKCFI 5673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1728 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.  The applicant’s application 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 27 September 2023, 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 25 August 2023 (“the Board’s Decision”).

2.  The Board found that the applicant was not entitled to non-refoulement protection 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 31 October 2022 and confirmed the same.

The applicant’s case

3.  The applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared harm, torture or death from (a) a creditor in relation to an unpaid loan; and (b) her husband in relation to her extra-marital relationship in Hong Kong from which she had had a child.

Withdrawal of the Leave Application

4.  By her affirmation dated 3 September 2024, the applicant applied to cancel the Leave Application because she wanted to go back to Indonesia as soon as possible.

5.  By a letter to this court dated 26 September 2024, the Director informed this court that the applicant had written a letter dated 9 September 2024 to cancel all her non-refoulement claim including the Leave Application, as she wanted to go back to her home country as soon as possible and it was safe for her to go back. 

6.  By a further letter dated 9 September 2025, the Director informed this court that the applicant was removed on 6 December 2024.

7.  There is no evidence to show that the applicant made the above withdrawal application other than out of her 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 it was safe for her to go back to her home country.  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 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).

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