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

HCAL 836/2020

[2025] HKCFI 2671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 836 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 and only the Director of Immigration as the Putative Interested Party, and naming the decision of the Torture Claims Appeal Board dated 29 April 2020 as the Judgment, order, decision or other proceeding in respect of which relief is sought;

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.  The Applicant filed a Form 86 on 7 May 2020 (“Form 86”) seeking leave for judicial review, which was supported by an affirmation also dated and filed on 7 May 2020 (“the Affirmation”).

2.  The Applicant’s Affirmation stated that the Applicant did not want to go back to Indonesia as the Applicant’s family “didn’t accept [the Applicant] as a transgender”, and exhibited a decision of an Adjudicator of the Torture Claims Appeal Board (“Adjudicator” and “TCAB” respectively) made on 29 April 2020 (“the TCAB Decision”)[1], and the covering letter from the TCAB which was also dated 29 April 2020.

3.  The Applicant’s papers requested an oral hearing of the leave application, which took place on 9 June 2025.

4.  The Applicant’s Form 86 did not name a putative respondent, and named the TCAB as the 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, and the DOI as the putative interested party.

5.  Pursuant to the papers, and as also clarified with the Applicant at the oral hearing, I have also amended the Form 86 of my own motion to reflect that the judgment, order, decision or other proceeding in respect of which relief is sought is, in fact, the TCAB Decision[2].

6.  I asked the Applicant at the hearing (with the assistance of the interpreter, and referring the Applicant to the TCAB Decision as was exhibited to the Affirmation) how the Applicant wished to proceed with the application given that the TCAB had:

a.  in its covering letter said that the TCAB “has reviewed your case and decided that your Appeal/Petition be allowed. Accordingly, the [TCAB] reverses the Decision of the Director dated 28 December 2018”;

b.  in the TCAB Decision found “that the [Applicant] has a well-founded fear of persecution in Indonesia and [the Applicant’s] claim for non-refoulement protection on the ground of persecution risk is substantiated”;

c.  in the TCAB Decision accepted that “there is a real risk that the [Applicant] would suffer mistreatment that would constitute CIDTP if [the Applicant] returned to Indonesia in the reasonably foreseeable future, from which [the Applicant] would be unable to access state protection and nor could he reasonably relocate to avoid”; and

d.  in the TCAB Decision found that the Applicant was “entitled to non-refoulement protection in Hong Kong on two of the available grounds, namely BOR 3 risk and persecution risk under the USM”, accordingly reversing the Director’s decision dated 28 December 2018[3].

7.  As the Applicant indicated that prior to the hearing the Applicant had not fully understood that the TCAB had allowed the appeal, further material portions of the TCAB Decision[4] were translated to the Applicant.

8.  After such interpretation, the Applicant told me that the Applicant intended to withdraw the application for leave.

9.  There was before me no indication that the application for withdrawal was made other than out of the Applicant’s own accord, volition, and free will. The Applicant also understood that if the application were withdrawn, the decision of the Board would stand and that the consequence of agreeing to withdraw the application was that it was likely I would dismiss the application.

10.  I therefore accede to the request by the Applicant to withdraw the application for leave to apply for judicial review, without adjudicating on the merits of the said application. 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

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