Tran Thi Phan Diep v. Torture Claims Appeal Board

HCAL 338/2024

[2026] HKCFI 3592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 338 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 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 24 May 2023”.

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 19 February 2024, 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 14 December 2018.

2.However, the Board only made one decision dated 24 May 2023 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 27 September 2021 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

3.The applicant had attached a copy of the Board’s Decision and a copy of the Board’s decision dated 14 December 2018 to her supporting affirmation dated 19 February 2024. The Board’s decision dated 14 December 2018 was not in respect of the applicant but other non-refoulement claimants. It is clear that the applicant made a mistake in stating a wrong date for the Board’s Decision in her Form 86. The Board’s Decision, instead of the Board’s decision dated 14 December 2018, should be the subject matter of the Leave Application.

4.The Board found that the applicant failed to establish her non-refoulement claim on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision and confirmed the same.

Amendments

5.The applicant named the Board / Non-refoulement Claims Petition Office and the Director as the putative respondents, and did not name any putative interested party in Form 86. In fact, only the Board should be the putative respondent, and the Director should be the putative interested party.

6.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

7.As aforesaid, the subject matter of the Leave Application should be the Board’s Decision.

8.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, “Director of Immigration” is added as the putative interested party, and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 24 May 2023”.

Late application

9.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.

10.However, the applicant filed Form 86 on 19 February 2024, which was more than 8 months after the Board’s Decision (made on 24 May 2023). The applicant was hence late for more than 5 months 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.

11.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.

12.The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application.

13.A delay of more than 5 months is substantial, and there was no explanation given for the delay.

14.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

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

The applicant’s case

16.The applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be harmed or killed by her father’s creditor due to her father’s inability to repay his debt to the creditor.

Withdrawal of the Leave Application

17.Before the Leave Application was dealt with, the applicant filed an ex-parte application by way of her affirmation dated 8 June 2026 to withdraw the Leave Application. The applicant also sent a letter dated 8 June 2026 to the registrar of this court to withdraw the Leave Application. In both the applicant’s said affirmation and said letter, she stated that it was safe for her to return to her country and she would like to return to her country as soon as possible.

18.There is no evidence to show that the applicant made the above 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.

19.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.”

20.Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large by granting leave to the applicant to withdraw the Leave Application. The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the Leave Application.

Discussion

21.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.

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

23.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).

24.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).

25.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

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

Dated the 24^th day of June 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