Case Document

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HCAL 1967/2023

[2025] HKCFI 6002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1967 OF 2023

BETWEEN
	Hoang Hong Diu	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 “Director of Immigration” be added as the putative interested party.

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 2 November 2023, 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 May 2023 (“the Board’s Decision”).

2.The Board found that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism. Thus, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 7 July 2022 and confirmed the same.

Amendments

3.In Form 86, the applicant did not name the putative respondent correctly and did not name any putative interested party, when the Board should be the putative respondent and the Director should be the putative interested party.

4.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and add “Director of Immigration” as the putative interested party.

Late application

5.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

6.However, the applicant filed her Form 86 on 2 November 2023, which was more than 5 months after the Board’s Decision (made on 12 May 2023). The applicant was hence late for more than 2 months in making the Leave Application.

7.This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

8.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.

9.A delay of more than 2 months is not insignificant. Moreover, as the applicant has applied for withdrawal of the Leave Application and confirmed that her problem in Vietnam had been resolved, it is otiose and pointless to grant leave to the applicant to proceed with the intended judicial review as discussed below.

10.Having considered the above criteria, this court will not grant an extension of time for the applicant to file the Leave Application.

11.The Leave Application can therefore be dismissed on the ground of being made out of time alone.

The applicant’s case

12.The applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be seriously harmed by her creditor as she failed to repay her loan.

Withdrawal of the Leave Application

13.By an affirmation dated 30 June 2025, the applicant applied to withdraw the Leave Application as it was safe for her to return to her country. Further, by a letter dated 25 August 2025, the Director informed this court that the applicant had written a letter dated 23 July 2025 to withdraw the Leave Application. The applicant stated in her said letter that her problem in Vietnam had been resolved and she wanted to return to Vietnam as soon as possible.

14.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.

15.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.”

16.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

17.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 problem in Vietnam had been resolved. In other words, it was safe for her to return to her country and the basis of the applicant’s non-refoulement claim no longer exists.

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

19.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).

20.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).

21.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

22.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed for being made out of time and devoid of merits.

Dated the 9^th day of December 2025

( Teresa Ng )
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 the applicant’s 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: 9 December 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: 9 December 2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 20641 Director of Immigration Putative interested party’s ref. no.: QA T/C 415/22 (Formerly RBCZ 5000283/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)