Dian Febian v. Torture Claims Appeal Board

HCAL 516/2025

[2026] HKCFI 2057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 516 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 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 26 February 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 8 November 2024 (“the Board’s Decision”).

2.The Board found that the applicant’s non-refoulement claim were not made out on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 24 July 2024, which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her enemy Andik, whose wife was a lesbian and had a special relationship with her, as well as by a loan shark as she was unable to settle the repayment of a loan of 150 million Indonesian Rupiah.

Late application

4.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.

5.However, the applicant filed Form 86 on 26 February 2025, which was 3 months and 18 days after the Board’s Decision (made on 8 November 2024). The applicant was hence late for 18 days 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.

6.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.

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

8.Thus, there is simply no reason for this court 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.

Withdrawal of the Leave Application

9.On 9 January 2026, the applicant filed an ex-parte application by way of her affirmation dated the same date to withdraw the Leave Application. She mentioned in her affirmation that she had no problem in her country and she wanted to go back home.

10.The Director also informed this court on 5 March 2026 that the applicant had been removed during the period from 23 February 2026 to 1 March 2026.

11.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.

12.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.”

13.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

14.It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that she had no problem in her country. In other words, the basis of her non-refoulement claim no longer exists.

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

16.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).

17.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).

18.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

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

Dated the 15^th day of April 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