Pham Van Thao v. Torture Claims Appeal Board

HCAL 803/2024

[2026] HKCFI 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 803 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.  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 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 21 May 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 15 December 2023 (“the Board’s Decision”).

2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism. Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 16 July 2021, which rejected the applicant’s non-refoulement claim.

Amendments

3.In Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” and the Director as the putative respondents but did not name any putative interested party.

4.In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.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 putative respondent at all.

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

Late application

7.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.

8.However, the applicant filed his Form 86 on 21 May 2024, which was more than 5 months after the Board’s Decision (made on 15 December 2023). The applicant was hence late for more than 2 months in making the Leave Application.

9.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.

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

11.A delay of more than 2 months is significant. Moreover, as the applicant has applied for withdrawal of the Leave Application and confirmed that it would be safe for him to return to his country, it is otiose and pointless to grant leave to the applicant to proceed with the intended judicial review as discussed below.

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

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

The applicant’s case

14.The applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be ill-treated or even killed by his creditor as he owed the creditor a loan that he had no money to repay.

Withdrawal of the Leave Application

15.Before the Leave Application was dealt with, the applicant filed a letter to the Registrar of the High Court and an ex parte application by way of his affirmation both dated 21 August 2025 to withdraw the Leave Application.

16.As stated in the applicant’s said letter and affirmation, it is now safe for him to go back to his home country and he wants to return to his home country as soon as possible.

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

18.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.”

19.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

20.It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that it is safe for him to return to his home country. Thus, the basis of his non-refoulement claim no longer exists.

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

22.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).

23.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).

24.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

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

Dated the 14^th day of January 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