Akter Tania v. Torture Claims Appeal Board

HCAL 2068/2024

[2025] HKCFI 6132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2068 OF 2024

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 or counsel 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 8 November 2024, 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 25 April 2024 (“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 applicable 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 2 January 2024 and confirmed the same, which rejected her non-refoulement claim.

Late application

3.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.

4.The applicant filed Form 86 on 8 November 2024, which was more than 6 months after the Board’s Decision (made on 25 April 2024). The applicant was hence late for more than 3 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

5.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time 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.

6.The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application.

7.The delay of more than 3 months is substantial. More importantly, as the applicant had applied for withdrawal of the Leave Application, it is otiose and pointless to grant leave to the applicant to proceed with the intended judicial review as discussed below.

8.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

9.However, for the sake of completeness, this court will deal with the Leave Application.

The applicant’s case

10.The applicant claimed for non-refoulement protection because if refouled to Bangladesh, her husband and parents in law would harm or kill her as her parents were unable to pay the dowry.

Withdrawal of the Leave Application

11.Before the Leave Application was dealt with, the applicant filed an affirmation dated 12 June 2025 to withdraw the Leave Application.

12.As stated in the applicant’s affirmation, she wanted to go home and her problem had finished.

13.There is no evidence to show that the applicant made the withdrawal application other than out of her own volition. With this 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.

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 her problem had finished. 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 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).

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 for leave 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