Ismahil v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 621/2020[2025] HKCFI 2214

Court

High Court CFI

Date27 May 2025

Judge—

Case Document

100%Judiciary

HCAL 621/2020

[2025] HKCFI 2214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 621 of 2020

BETWEEN
	Ismahil	Applicant
	And
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	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;

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

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;

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.By a Form 86 dated and filed on 14 April 2020 (“Form 86”), which was supported by a supporting affirmation also dated and filed on 14 April 2020 (“the Affirmation”), the Applicant sought leave for judicial review of a decision of an Adjudicator of the Torture Claims Appeal Board (“Adjudicator” and “TCAB” respectively) made on 20 March 2020 (“the TCAB Decision”) [1].

2.The Applicant’s Form 86 names the Adjudicator as the putative respondent, and the Director of Immigration (“DOI”) as a 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.

3.The Applicant, in his papers, requested an oral hearing of his leave application and hence appeared before me at at such.

4.At the oral hearing, the Applicant said he wanted to withdraw the application for leave and his case, as he wanted and needed to return to his country, since the political problems there had been “sorted out”.

5.There was before me no indication that the withdrawal was made other than out of his own accord, volition, and free will. Indeed, at the oral hearing, he said he had told the Immigration Department that he wished to return to his country, who had responded by saying that he needed a letter, or official paper, from the court to withdraw his case before he was allowed to go. He hence asked for such a document to be provided to him within 10 days of the oral hearing so that he could provide it to the Immigration Department.

6.I therefore accede to the Applicant’s request to withdraw his application for leave, without adjudicating on the merits of the application for leave. 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.

Dated the 27^th day of May 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 to the Applicant on the 27^th day of May 2025 Ismahil Applicant’s ref. no: Nil.		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 the 27^th day of May 2025 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 13271/18/9/32/B1511 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 301/09 (formerly RBCZ/1883/08) QA T/C 2644/18 (formerly RBCZ 2002191/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)