Kisaakye Jessie v. Torture Claims Appeal Board

HCAL 1242/2021

[2025] HKCFI 5858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1242 OF 2021

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”.

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 3 September 2021, 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 12 September 2019 (“the Board’s Decision”).

2.The Board’s Decision was concerning the applicant’s (and her son’s) late filing of the Notice of Appeal/Petition (“NOA”) against the decision of the Director of Immigration (“the Director”) dated 31 May 2019 which rejected the applicant’s (and her son’s) non-refoulement claim. The Board did not allow the late filing of the applicant’s (and her son’s) NOA.

Amendment

3.In Form 86, the applicant named the Board and “Non-refoulement Claims Petition Office” as the putative respondents, when only the Board should be the putative respondent.

4.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board, and should not be named as a putative respondent at all.

5.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

6.It is not necessary to state the applicant’s case here as the Board’s Decision was only concerning the late filing of the applicant’s NOA.

Withdrawal of the Leave Application

7.By a letter dated 21 March 2023, the applicant informed the Director that she and her son wanted to go back to their home country Uganda as soon as possible, it was safe for them to go back and they wanted to cancel the Leave Application.

8.On 13 September 2024, the Director informed this court that the applicant was removed on or before 31 July 2024.

9.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.

10.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.”

11.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

12.It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that it was safe for her to go back to her home country. In other words, the basis of the applicant’s non-refoulement claim no longer exists.

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

14.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).

15.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).

16.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

17.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