HCAL 238/2018
[2025] HKCFI 2219
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 238 of 2018
BETWEEN
Masum
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 (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung :
Leave to apply for Judicial Review be dismissed .
Observations for the Applicant:
1. The applicant was an illegal immigrant. He had made non-refoulement claim to the Director of Immigration (“the Director”). The Director refused his claim. He appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board dismissed his appeal.
2. The applicant applied for leave to apply for judicial review of the Board’s Decision. The Court had refused his application.
3. The applicant instructed a firm of solicitors to apply to the Court again for leave to apply for judicial review of the Board’s Decision. This Court had raised the issue of res judicata with the solicitor acting for him. Thereafter, the solicitor ceased acting for the applicant.
4. This Court had brought this to the attention of the Director. However, according to the record, the Court had made no Order to strike out his application.
5. The Immigration Department informed the Court that the applicant has been removed, which means the applicant has already left Hong Kong.
6. Section 37ZF of the Ordinance provides, inter alia ,
“Deemed withdrawal of torture claim on claimant’s departure
(1) A torture claim (whether a claim pending final determination or a substantiated claim) made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant (for whatever reason) leaves Hong Kong.”
7. Final determination includes the judicial review proceedings[1] .
8. There is nothing outstanding in this action. This action should have been struck out for abuse of the court’s process. Also, the Court will refuse to grant the relief as it will serve no practical purpose since the applicant has returned to his country[2] . For case management, this application should be dismissed.
9. The application is dismissed.
Dated the 8th day of October 2025
(M.O. WONG) (Ms)
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 :
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);
Sent to the ApplicantMasum
Sent 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 8/10/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Director of Immigration Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)
Form CALL-1
[1] The Court of Appeal in Re: Aioub Ali [2019] HKCA 1329 . Hon Lam VP (as he then was), Wong and S T Poon, 2 December 2019, held:
“16. Under Section 23(4) of Schedule 1A of the Immigration Ordinance, the decision of the Board is final. Final means final in terms of administrative process. However, such statutory provision does not exclude judicial review. In a judicial review, the court will process the matter by examining if there is public law ground to warrant intervention as discussed in [13(1)] above.”
[2] The Court of Appeal in AW v Director of Immigration and William Lam CACV 63/2015, Hon Lam VP, Kwan and Poon JJA (as they then were), 3 November 2015 held:
“67. 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 (De Smith’s Judicial Review (7th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5th ed) at §18.18.1).”