Hossain Uzzal v. Torture Claims Appeal Board

HCAL 2131/2020

[2025] HKCFI 6011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2131 OF 2020

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 decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 15 October 2020”.

2.  The applicant’s application for leave 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 27 October 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions, one of which is the decision of the Torture Claims Appeal Board (“the Board”) dated 15 October 2020 (“the Board’s Decision”).

2.The Board found the applicant failed to show that he was entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 31 July 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

3.According to his Form 86, the applicant received the notice of the other decision on 13 August 2018 but it was made on an unknown date. Nevertheless, the applicant enclosed a copy of the Director’s Decision in his supporting affirmation dated 27 October 2020. It is clear that the other decision referred to in his Form should be the Director’s Decision.

4.However, The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549). Thus, the applicant cannot apply for leave in respect of the Director’s Decision and this court will only deal with the Board’s Decision in the Leave Application.

Amendments

5.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.

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

7.As aforesaid, the decision in respect of which is relief sought should only be the Board’s Decision.

8.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the decision of which relief is sought to “Torture Claims Appeal Board’s decision dated 15 October 2020”.

The applicant’s case

9.The applicant claimed for non-refoulement protection because if refouled to Bangladesh, the Awami League people would discover and kill him, as he and his father had refused to join them or to give them donation.

Withdrawal of the Leave Application and removal of the applicant

10.Before the Leave Application was dealt with, the applicant filed an affirmation dated 17 July 2025 to withdraw the Leave Application.

11.As stated in the applicant’s affirmation, he wanted to go back to his home country because his problem in his home country had been solved.

12.Moreover, on 5 December 2025, the Director informed this court that the applicant had been removed from Hong Kong during the period from 24 November 2025 to 30 November 2025.

13.There is no evidence to show that the applicant made the 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.

14.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.”

15.Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the Leave Application.

Discussion

16.It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that he wanted to go back to his home country and his problem in his home country had been solved. In other words, the basis of the applicant’s non-refoulement claim no longer exists.

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

18.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).

19.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).

20.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

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

Dated the 9^th 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