Karmegam Vijayapandi v. Torture Claims Appeal Board

Case No.HCAL 1117/2021[2026] HKCFI 1376

Court

High Court CFI

Date11 Mar 2026

Judge—

Case Document

100%Judiciary

HCAL 1117/2021

[2026] HKCFI 1376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1117 OF 2021

BETWEEN
	Karmegam Vijayapandi	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”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 28 July 2021”.

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 9 August 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 20 December 2018.

2.However, at the oral hearing before this court on 3 March 2026, the applicant confirmed that he had put down a wrong date for the Board’s decision. The Board’s decision should in fact be dated 28 July 2021 (“the Board’s Decision”). The date of 20 December 2018 was just the date of the decision of the Director of Immigration (“the Director”).

3.The Board found that the applicant failed to establish his non-refoulement claim on any of the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism. Hence, the Board affirmed the Director’s decision dated 20 December 2018, which rejected his non-refoulement claim.

4.The applicant had previously made a torture claim and his claim was rejected by the Director and the Board on 14 June 2013 and 29 November 2013 respectively. Thus, the applicant’s Torture Risk had been finally disposed of, and it was not necessary for the Board to deal with it again in the Board’s Decision.

Amendments

5.The applicant named both the Board and the Director as the putative respondents and spelt the Board’s name wrong in Form 86, when only the Board should be the putative respondent. The applicant did not name any putative interested party in Form 86, when the Director should be so named.

6.As aforesaid, the applicant put down a wrong date for the Board’s Decision in Form 86.

7.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party, and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 28 July 2021”.

The applicant’s case

8.The applicant claimed for non-refoulement protection because if refouled to India, he would face death as he owed money to a powerful and rich individual, from whom he borrowed money to buy a car, but he was unable to repay the loan.

Withdrawal of the Leave Application

9.At the oral hearing before this court on 3 March 2026, the applicant confirmed with this court that he would like to go back to India and withdraw the Leave Application, as it was safe for him to return.

10.There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.

11.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.”

12.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

13.It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that he was safe to return to his home country. In other words, the basis of his non-refoulement claim no longer exists.

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

15.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).

16.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).

17.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

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

Dated the 11^th day of March 2026

( Irene LEE )
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: 11 March 2026 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: 11 March 2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 15152/19/1/25/IN2997 Director of Immigration Putative interested party’s ref. no.: QA T/C 800/10 (formerly RBCZ 850/09) QA T/C 4682/18 (formerly: RBCZ/2002391/14) (T8S21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.