Case Document

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HCAL 1990/2020

[2025] HKCFI 3661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1990 OF 2020

BETWEEN
	Ale Rahul	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 (Order 53, rule 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 Michael WONG:

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 5 October 2020, 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 23 September 2020 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001990_2020_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s appeal/petition failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 6 June 2018, which rejected the applicant’s claim for non-refoulement protection.

Amendments

3.The applicant named the Board and the Immigration Department as both the putative respondents and the putative interested parties, when only the Board should be the putative respondent and only the Director should be the putative interested party.

4.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

5.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

6.In sum, the applicant claimed for non-refoulement protection because he feared that, if refouled to India, he would be harmed by his uncles and cousin as the uncles wanted the apartment that the applicant inherited from his late father, who inherited that apartment from the applicant’s late grandfather.

Withdrawal at the oral hearing

7.The applicant requested for an oral hearing of the Leave Application and his case was heard on 12 August 2025.

8.The applicant informed this court that he had written a letter to the Director to withdraw the Leave Application about 3 to 4 months ago, but he did not keep a copy of that letter. In any event, he also applied to withdraw the Leave Application at the oral hearing. The reason he gave for the withdrawal application was that it would be safe for him to return to his home country as his problem there had been solved.

9.There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

10.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, this court should deal with the Leave Application instead of leaving the action at large by granting leave to withdraw to the applicant.

Grounds for judicial review

12.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

13.The applicant did not advance any ground for the intended judicial review in Form 86, nor in the supporting affirmation dated 5 October 2020. He merely stated in the affirmation that there was no safety in India and his life would be at risk should he return.

14.The applicant did not advance any ground at the oral hearing before this court either, as he just wanted to return to his own country.

Discussion

15.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

16.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

17.The applicant was afforded an oral hearing before the Board on 15 July 2020 and the applicant was present. Thus, the applicant did have the opportunity to present his case to the Board in person.

18.The Board gave detailed analysis and reasoning for its conclusion that the applicant was not a witness of truth, his account bore no relation to reality and no credence could be attached to anything he claimed save that he was a national of India. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

19.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

20.Thus, there is no merits in the Leave Application at all.

21.Moreover, as the applicant had confirmed at the oral hearing before this court that it would be safe for him to return to his home country, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

22.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).

23.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 him to return to his 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).

24.It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

Conclusion

25.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 19^thday of August 2025

(Irene LEE)
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/Handed to the applicant/the applicant’s solicitors on: 19 August 2025 Applicant’s ref. no: Nil		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: 19 August 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 11952/18/6/131/IN2378 Director of Immigration Putative interested party’s ref. no.: QA T/C 1665/18 (formerly RBCZ 10409/15) (T9I6S) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)