|
HCAL 2000/2023
[2025] HKCFI 6105
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2000 OF 2023
|
BETWEEN
|
| |
Oktaviani Nur |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
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 9 November 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 29 September 2023 (“the Board’s Decision”).
2. The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board refused the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 3 April 2023.
The applicant’s case
3. The applicant claimed for non-refoulement protection because if refouled to Indonesia, she feared harm or death from her husband due to her love relationship with another man.
Withdrawal of the Leave Application
4. Before the Leave Application was dealt with, the applicant filed an affirmation dated 25 August 2025 to withdraw the Leave Application because she wanted to go back to her country.
5. Moreover, by a letter dated 10 September 2025, the Director informed this court that the applicant had written a letter dated 2 September 2025 to close her case and to return to her home country. In the applicant’s said letter, she stated that her issues in her home country had been resolved and she could return home.
6. 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.
7. 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.”
8. 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
9. It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that her issues in her home country had been resolved. In other words, the basis of the applicant’s non-refoulement claim no longer exists.
10. It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.
11. 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).
12. 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).
13. 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
14. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 9th day of December 2025
| |
( Teresa Ng )
for Registrar, High Court
|
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 his solicitors must:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors on:
9 December 2025
Applicant’s ref. no:
Nil |
|
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:
9 December 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 21638
Director of Immigration
Putative interested party’s ref. no.: QA T/C 99/23 (formerly as RBCZ 5000067/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|