Case Document

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HCAL 831/2026

[2026] HKCFI 5399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 831 OF 2026

BETWEEN

	Kimpha Chayaphon (a minor)	Applicant
	by Seeluean Netnapha, his next friend
	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 or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, “Seeluean Netnapha” be deleted as the 2^nd applicant, the 1^st applicant be changed to be the sole applicant and his name be amended to “Kimpha Chayaphon (a minor) by Seeluean Netnapha, his next friend”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

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 30 April 2026, Kimpha Chayaphon and Ms Seeluean Netnapha 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 24 March 2026 (“the Board’s Decision”).

2.Seeluean Netnapha (“the Mother”) is the mother of Kimpha Chayaphon, who is a minor. In Form 86, the Mother named Kimpha Chayaphon as the 1^st applicant and herself as the 2^nd applicant. The Mother, however, filed her own application for leave to apply for judicial review on 13 February 2023 in HCAL 205/2023, and hence she should not be an applicant in the Leave Application.

3.Moreover, the Board’s Decision concerns only Kimpha Chayaphon’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 7 November 2025 (“the Director’s Decision”). Thus, Kimpha Chayaphon should be the sole applicant in the Leave Application.

4.The Board found that Kimpha Chayaphon’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism and he was not entitled to non-refoulement protection in Hong Kong. Accordingly, the Board confirmed the Director’s Decision, which rejected Kimpha Chayaphon’s non-refoulement claim.

Amendments

5.As aforesaid, Kimpha Chayaphon should be the sole applicant in the Leave Application. His name should be stated in Form 86 as “Kimpha Chayaphon (a minor) by Seeluean Netnapha, his next friend”.

6.Thus, on this court’s own motion, “Seeluean Netnapha” is deleted as the 2^nd applicant, the 1^st applicant is changed to be the sole applicant and his name is amended to “Kimpha Chayaphon (a minor) by Seeluean Netnapha, his next friend”.

7.In Form 86, the applicant named the Board and Non-refoulement Claims Petition Office as the 1^st putative respondent and the Director as the 2^nd putative respondent, and spelt the names of the Non-refoulement Claims Petition Office and the Director wrong.

8.In fact, only the Board should be named as the putative respondent.

9.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.

10.The applicant did not name any putative interested party in Form 86, when the Director should be so named.

11.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

The applicant’s case

12.In sum, the applicant claimed for non-refoulement protection because if refouled to Thailand, he would be at risk of being tortured, ill-treated and persecuted by the Mother’s ex-husband.

Legal representation of the applicant

13.The applicant is a minor born on 24 June 2024 in Hong Kong and is represented by the Mother in the Leave Application.

14.The Mother applied for legal aid for the applicant but her application was refused by the Director of Legal Aid on 20 August 2026.

15.As the applicant was legally represented before the Director and no new evidence would be advanced in the Leave Application, this court considered that the lack of legal representation in the Leave Application was a mere irregularity and it would not prejudice the applicant. Hence, this court waived the irregularity and proceeded to deal with the Leave Application.

Removal of the applicant from Hong Kong and withdrawal of the Leave Application

16.Before the Leave Application was dealt with, the Director informed this court on 10 September 2026 that the applicant was removed from Hong Kong during the period from 31 August 2026 to 6 September 2026 together with the Mother, who is also a non-refoulement claimant with her own application for leave to apply for judicial review in HCAL 205/2023.

17.The Director also informed this court on 17 September 2026 that the Mother wrote a letter dated 14 July 2026 to withdraw the Leave Application on behalf of the applicant and her own application for leave to apply for judicial review. In the said letter, the Mother stated that her issues in her country had been resolved and she could return home.

18.There is no evidence to show that the Mother made the above withdrawal application on behalf of the applicant 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 for the Leave Application even though he had previously requested one through the Mother. It is therefore not necessary for this court to afford him any oral hearing for the Leave Application.

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 Mother had confirmed that her issues in her country had been resolved and she could return home. As the Mother made the withdrawal application on behalf of herself and the applicant, it is clear that the applicant was also safe to return to his country. Thus, the basis of his 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 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).

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 23^rd day of September 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: 23/09/2026 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: 23/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 27545 Director of Immigration Putative interested party’s ref. no.: QA T/C 3023/24 (formerly RBCZ 5002669/24) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)