Zainal Arifin v. Torture Claims Appeal Board

HCAL 2643/2025

[2026] HKCFI 3498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2643 OF 2025

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 28 November 2025, 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 28 November 2025 (“the Board’s Decision”).

2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the available grounds under the Unified Screening Mechanism. Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 12 March 2025 and affirmed the same, 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, he would be harmed or killed by his siblings due to the sale of his family house.

Withdrawal of the Leave Application

4.Before the Leave Application was dealt with, the Director informed this court on 10 April 2026 that the applicant had written a letter dated 31 March 2026 to withdraw the Leave Application. In the applicant’s said letter, he stated that his issues in his home country had been resolved and he could return home.

5.The Director further informed this court on 21 May 2026 that the applicant had been removed during the period from 11 May 2026 to 17 May 2026.

6.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.

7.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.”

8.Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large by granting leave to the applicant to withdraw the Leave Application. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the Leave Application.

Discussion

9.It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that his issues in his home country had been resolved and he could return home. In other words, it was safe for him to return to his home country and the basis of his non-refoulement claim no longer exists.

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

11.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).

12.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).

13.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

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

Dated the 17^th day of June 2026

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