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HCAL 1255/2023
[2025] HKCFI 5700
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1255 OF 2023
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BETWEEN
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Kunaeni |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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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. On this court’s own motion, 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 21 July 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 10 July 2023 (“the Board’s Decision”).
2. The Board considered 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 25 May 2022.
Amendment
3. In Form 86, the applicant named the Board as both the putative respondent and the putative interested party. However, the putative interested party should the Director.
4. Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.
The applicant’s case
5. The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would face risk of serious harm from a moneylender as she could not repay the debt to the moneylender.
Withdrawal of the Leave Application
6. By her two letters to the Director dated 23 February 2024 and 5 April 2024 respectively, the applicant requested to withdraw the Leave Application, as she wanted to go back to her home country Indonesia as soon as possible and it was safe for her to go back.
7. By a letter dated 12 November 2024, the Director informed this court that the applicant was removed from Hong Kong on 5 July 2024.
8. 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.
9. 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.”
10. 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
11. 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.
12. It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.
13. 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).
14. 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).
15. 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
16. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 25th day of November 2025
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(Irene LEE)
for Registrar, High Court
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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:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors on:
25 November 2025
Applicant’s ref. no:
Nil |
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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:
25 November 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 20408
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 233/22
(Formerly RBCZ 5000137/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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