Nguyen Van Tien v. Torture Claims Appeal Board

HCAL 1697/2021

[2026] HKCFI 2734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1697 OF 2021

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 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 15 December 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 12 October 2017 (“the Board’s Decision”).

2.The Board refused the applicant’s application for late filing of his Notice of Appeal/Petition in respect of his intended appeal/petition against the decision of the Director of Immigration (“the Director”) dated 5 June 2017, which rejected the applicant’s non-refoulement claim.

Amendment

3.The applicant named the Board as the putative interested party in Form 86, when the Director should be the putative interested party.

4.Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”.

Late application

5.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.

6.However, the applicant filed his Form 86 on 15 December 2021, which was more than 4 years and 2 months after the Board’s Decision (made on 12 October 2017). The applicant was hence late for more than 47 months in making the Leave Application.

7.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.

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

9.A delay of more than 47 months is very 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.

10.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.

11.However, for the sake of completeness, this court will deal with the Leave Application as discussed below.

The applicant’s case

12.The applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor, Hung, and Hung’s men due to his inability to repay his loan.

Withdrawal of the Leave Application

13.Before the Leave Application was dealt with, the Director informed this court on 27 March 2026 that the applicant had written a letter dated 24 March 2026 to withdraw the Leave Application. In his said letter, the applicant stated that his issues in Vietnam had been resolved and it was safe for him to return to Vietnam.

14.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.

15.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.”

16.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

17.It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that his issues in Vietnam had been resolved and it was safe for him to return to Vietnam. In other words, the basis of his non-refoulement claim no longer exists.

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

19.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).

20.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).

21.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

22.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