Setiyowati Rini v. Torture Claims Appeal Board

HCAL 466/2024

[2025] HKCFI 5886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 466 OF 2024

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.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

2.  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 14 March 2024, 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 13 March 2024 (“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 affirmed the decision of the Director of Immigration (“the Director”) dated 15 November 2023[1], which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.The applicant claimed for non-refoulement protection because if refouled to Indonesia, her husband might harm or kill her as a result of her having had a child to another man. She was also concerned that her child would experience mockery from neighbours as a child born out of wedlock.

Withdrawal of the Leave Application

4.By a letter dated 18 June 2025, the Director informed this court that the applicant had written a letter dated 12 May 2025 to withdraw the Leave Application. In the applicant’s said letter, she stated that she would like to withdraw the Leave Application because she wanted to return to her home country as soon as possible, her issues in her home country had been resolved and she could return home.

5.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 or any oral hearing of the Leave Application even though she had previously requested one.

6.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.”

7.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

8.It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that her issues in her home country had been resolved and she could return home. In other words, the basis of the applicant’s non-refoulement claim no longer exists.

9.It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.

10.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).

11.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).

12.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

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

Dated the 2^nd day of December 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