Anik v. Torture Claims Appeal Board

HCAL 825/2025

[2026] HKCFI 251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 825 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 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 interested party be amended to “Director of Immigration”.

2.  The applicant’s application for an extension of time to file the application for leave to apply for judicial review be refused.

3.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

4.  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 7 April 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 5 July 2024 (“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 24 January 2024.

Amendment

3.In Form 86, the applicant named the Board as both the putative respondent and the putative interested party.

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

5.Thus, this court makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

Late application

6.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.

7.However, the applicant filed his Form 86 on 7 April 2025, which was more than 9 months after the Board’s Decision (made on 5 July 2024). The applicant was hence late for more than 6 months in making the Leave Application.

8.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.

9.The applicant attached a document with the title “Reasons for delay application” to his Form 86. This court will treat it as the applicant’s application for an extension of time to file the Leave Application. The explanation for the delay given in this document is that the applicant did not receive the Board’s Decision from the Board. He was informed by the Immigration Department about the Board’s Decision at the time of his regular reporting and he then went to the Board to receive the Board’s Decision by hand.

10.A delay of more than 6 months is significant. The explanation given by the applicant is not satisfactory, as he did not explain why he could not receive the Board’s Decision by post and did not indicate when he was informed by the Immigration Department about the Board’s Decision. His regular reporting to the Immigration Department should be more frequent than a span of 6 months and hence the Immigration Department should have informed him about the Board’s Decision much earlier.

11.Moreover, as the applicant has applied for withdrawal of the Leave Application and confirmed that his problems in Bangladesh had been solved, 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 Bangladesh, he would be killed by members of the Awami League, which was the ruling political party of Bangladesh.

Withdrawal of the Leave Application

15.Before the Leave Application was dealt with, the applicant filed an ex parte application by way of his affirmation dated 27 October 2025 to withdraw the Leave Application.

16.As stated in the applicant’s said affirmation, he wants to go back to his home country, his problem has been solved and now his life is safe in his country.

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.

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