Pradhan Binita v. Torture Claims Appeal Board

HCAL 318/2021

[2025] HKCFI 6117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 318 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” and the name of the putative interested party be amended to “Director of Immigration”.

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 10 March 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 3 March 2021.

2.The Board affirmed the decision of the Director of Immigration (“the Director”) dated 19 May 2020, which rejected the applicant’s non-refoulement claim, as the Board found the applicant’s appeal/petition failed on all the applicable grounds under the Unified Screening Mechanism.

Amendments

3.In Form 86, the applicant named the Board / Non refoulment Claim Petition Office and the Director as the putative respondents and the Board / Non-refoulment Claim Petition Office as the putative interested party.

4.However, only the Board should be the putative respondent and the Director should be the putative interested party.

5.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 party at all.

6.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

7.The applicant claimed for non-refoulement protection because if refouled to India, she feared being harmed by her parents-in-law as they blamed her for the death of her husband.

Withdrawal of the Leave Application

8.By her affirmation dated 2 June 2025, the applicant applied to withdraw the Leave Application as the Immigration Department had given her a dependent visa.

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

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 the Immigration Department had given her a dependent visa. In other words, the applicant can stay in Hong Kong with her dependent visa.

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.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

16.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