Pham Thi Thieng v. Director of Immigration

HCAL 953/2024

[2026] HKCFI 2736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 953 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 18 June 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 31 December 2023 (“the Director’s Decision”).

2.The Director decided that the applicant could not make a subsequent claim for non-refoulement protection as there was no significant change of circumstances and the subsequent claim had no realistic prospect of success.

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.However, the applicant filed his Form 86 on 18 June 2024, which was more than 5 months after the Board’s Decision (made on 31 December 2023). The applicant was hence late for more than 2 months in making the Leave Application.

5.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.

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

7.A delay of more than 2 months is substantial, and there is simply no reason for this court to grant an extension of time for the applicant to file the Leave Application when no explanation was given. More importantly, the applicant has applied to withdraw the Leave Application and this court is of the view that the Leave Application ought to be dismissed 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 as discussed below.

The applicant’s case

10.The applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be harmed or killed by her creditors due to her unsettled debts.

Withdrawal of the Leave Application

11.Before the Leave Application was dealt with, the applicant sent a letter dated 18 February 2026 to this court, which was received by this court on 26 February 2026, to withdraw the Leave Application. In her said letter, the applicant stated that it was safe for her to go back to Vietnam.

12.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.

13.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.”

14.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

15.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 was safe for her to return to Vietnam. In other words, the basis of her non-refoulement claim no longer exists.

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

17.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).

18.Even assuming that there were errors of law, procedural unfairness or irrationality in the Director’s Decision, 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 risk of the applicant should be assessed 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).

19.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

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

Dated the 13^th day of May 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