Case Document

100%

HCAL 1948/2024

[2026] HKCFI 4543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1948 OF 2024

BETWEEN

	Nurlaelah Sari	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” and 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 29 October 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 5 January 2024 (“the Board’s Decision”).

2.The Board found that the applicant’s claim for non-refoulement protection in Hong Kong failed on all the applicable grounds under the Unified Screening Mechanism. Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 6 October 2022 and confirmed the same, which rejected her non-refoulement claim.

Amendments

3.In Form 86, the applicant named the Board and “Non-Refoulement claims Petition oFFICe” as both the putative respondents and the putative interested parties. In fact, only the Board should be the putative respondent, and the Director should be the putative interested party.

4.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and 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 Form 86 on 29 October 2024, which was more than 9 months after the Board’s Decision (made on 5 January 2024). The applicant was hence late for more than 6 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.

7.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.

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

9.A delay of more than 6 months is substantial, and there is simply no reason for this court to extend the time for the applicant to make the Leave Application when no explanation was given for the delay at all. Moreover, the applicant has applied to withdraw the Leave Application as discussed below, and hence she does not wish to proceed with the Leave Application.

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. 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 still deal with the Leave Application as discussed below.

The applicant’s case

12.The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her creditor DARTIM due to her inability to repay the debt.

Withdrawal of the Leave Application

13.Before the Leave Application was dealt with, the Director informed this court on 26 May 2026 that the applicant had written a letter dated 29 April 2026 to withdraw the Leave Application. In her said letter, the applicant stated that her issues in her home country had been resolved and she could return home.

14.The Director further informed this court on 10 July 2026 that the applicant had been removed from Hong Kong during the period from 29 June 2026 to 5 July 2026.

15.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.

16.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.”

17.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

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

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

20.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).

21.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).

22.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

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

Dated the 12^th day of August 2026

( Gladys 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 his 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: 12/08/2026 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: 12/08/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 21064 Director of Immigration Putative interested party’s ref. no.: QA T/C 883/22 (Formerly RBCZ 5000750/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)