Hussain, Ashiq v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 673/2020

[2025] HKCFI 2670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 673 of 2020

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 the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party, and naming the decisions of the Torture Claims Appeal Board dated 15 March 2017 and 19 March 2020 as the Judgment, order, decision or other proceeding in respect of which relief is sought;

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.The Applicant is from Pakistan. By way of a Form 86 dated and filed on 16 April 2020 (“Form 86”) he sought leave for judicial review. The Form 86 was supported by an affirmation also dated and filed on 16 April 2020 (“the Affirmation”).

2.In his papers, the Applicant requested an oral hearing of his leave application, which took place on 2 June 2025.

3.At the hearing the Applicant appeared to be experiencing physical discomfort while standing. However, the Applicant said that he did not need medical attention, and that he wished to proceed with the hearing that day as he had a lot of hospital appointments and could not come back, even though his condition had not yet been diagnosed[1]. He asked if he could sit during the hearing, which I allowed him to do, and which visibly alleviated his discomfort.  The Applicant confirmed that he was able and wished to proceed with his application for leave, and that the only issues he faced were physical, and not mental, in nature.

4.I did not perceive from the Applicant’s medical documents, and from his behaviour during the hearing, that the Applicant was suffering from any mental health issues that would affect this capacity so as to require the invocation of procedures under RHC O. 80.

5.In the circumstances, I proceeded with the oral hearing of the application for leave for judicial review.

6.The Applicant’s Form 86 names the TCAB as the putative respondent, and does not name 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, and the Director of Immigration (“DOI”) as the putative interested

7.Pursuant to the papers, and as also clarified with the Applicant during the oral hearing, there was no “Decision of TCAB on 22.9.2016” that could have constituted the judgment, order, decision or other proceeding in respect of which relief is sought. I pointed out to the Applicant that his non-refoulement claims were the subject of two TCAB decisions. The first was dated 15 March 2017[2] and rejected the Applicant’s non-refoulement claim as had been advanced on the basis of Torture Risk, BOR3 Risk, and Persecution Risk[3] (“the 2017 TCAB Decision”). The second was dated 19 March 2020 rejecting the Applicant’s non-refoulement claim as advanced on the basis of BOR2 Risk[4] (“the 2020 TCAB Decision”)[5], which also referred to the 2017 TCAB Decision.

8.The Applicant confirmed to me during the hearing that he wished to seek leave to apply for judicial review of both the 2017 TCAB Decision and the 2020 TCAB Decision.  He said I could amend the Form 86 of my own motion to reflect this. I have hence done so.  I also asked the Applicant, and he lucidly answered, several questions about why the Form 86 and his Affirmation were only filed in April 2020.  I then proceeded to reserve judgment in relation to the application for leave for judicial review.

9.After the oral hearing, but before I had substantively dealt with the Applicant’s application for leave, the Applicant filed an affirmation on and dated 12 June 2025 (“the Withdrawal Affirmation”). The Withdrawal Affirmation was sworn before the Commissioner for Oaths in the High Court Building and, although written in English, was interpreted to and affirmed by the Applicant with the assistance of an Urdu interpreter.

10.In the Withdrawal Affirmation, the Applicant stated inter alia that “I want to withdraw my Judicial Review. I want to go back to my home country as soon as possible because my medical condition is to(sic) much serious. So please withdraw my case wished as soon as possible.” It also asked the Court to “Please accept my application”.

11.I consider that the Withdrawal Affirmation amounts to an application by the Applicant to withdraw his judicial review, and have treated it as such.

12.There was before me no indication that the Withdrawal Affirmation, and hence the Applicant’s application to withdraw his application for leave, was made other than out of the Applicant’s own accord, volition, and free will.  Indeed, given the Applicant’s state and medical documents he submitted for reference at the oral hearing, I see no reason to disbelieve (and I hence accept) his evidence that he suffers from a medical condition which has caused him to seek to withdraw his leave application so that he can return to Pakistan “as soon as possible”. Further, and in any event, it is clear to me on the Applicant’s evidence that he no longer intends to proceed with and prosecute his application for leave for judicial review.

13.In the circumstances, 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 26^th day of June 2025

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