NOVIYANTI EVA alias NOVIANTI EVA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1845/2023

[2025] HKCFI 5634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1845 OF 2023

Application for leave to apply for judicial review

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

Following:

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 13 October 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 22 September 2023 (“the Board’s Decision”).

2.  The Board found that the applicant’s non-refoulement claim failed on all 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 27 June 2022 and confirmed the same.

Amendments

3.  In Form 86, the applicant named “Torture Claims Appeal Board non-refulement Claims Petition office” as both the putative respondent and the putative interested party.  However, the putative respondent should only be the Board and the Director should be the putative interested party.

4.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 

5.  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

6.  The applicant claimed for non-refoulement protection because if refouled to Indonesia, her creditor would harm or kill her as she could not repay the debt to her creditor.

Withdrawal of the Leave Application

7.  By a letter to this court dated 13 September 2024, the applicant requested to withdraw the Leave Application, as she wanted to go back to her home country as soon as possible.  She also stated clearly in the said letter that her problem in her home country was solved. 

8.  Before this court could deal with the applicant’s withdrawal application, the Director informed this court on 25 November 2024 that the applicant was removed during the period 18 November 2024 to 24 November 2024.

9.  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.

10.  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.”

11.  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

12.  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 problem in her home country was solved.  In other words, the basis of the applicant’s non-refoulement claim no longer exists and it is safe for her to return to her own country.

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

14.  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).

15.  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).

16.  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

17.  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