Case Document

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HCAL 1034/2023

[2026] HKCFI 5744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1034 OF 2023

BETWEEN

	Santiago Jessica Viray	1^st Applicant
	Agaba Lucky Haruna Kine (a minor)	2^nd Applicant
	by Santiago Jessica Viray, 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, the name of the 2^nd applicant be amended to “Agaba Lucky Haruna Kine (a minor) by Santiago Jessica Viray, his next friend”, and the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.  The 1^st and 2^nd applicants’ application to withdraw the application for leave to apply for judicial review be refused.

3.  The 1^st and 2^nd applicants’ application for leave to apply for judicial review be dismissed.

Observations for the applicants:

The Leave Application

1.By way of Form 86 dated 26 June 2023 and filed on 27 June 2023, the applicants 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 30 May 2023 (“the Board’s Decision”).

2.The Board found that the applicants had failed to show that they were entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 20 January 2020, which rejected the applicants’ non-refoulement claims.

Amendments

3.In Form 86, Agaba Lucky Haruna Kine, who is the 1^st applicant’s son and a minor, is named the 2^nd applicant. As the 2^nd applicant is represented by the 1^st applicant as his next friend, his name is amended to “Agaba Lucky Haruna Kine (a minor) by Santiago Jessica Viray, his next friend” on this court’s own motion.

4.The applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” as the putative respondents in Form 86, when only the Board should be so named.

5.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.

6.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicants’ case

7.In sum, the applicants claimed for non-refoulement protection in Hong Kong because if refouled to the Philippines, the applicants feared that: (1) they would be ill-treated or even killed by the 1^st applicant’s husband due to family dispute; (2) the 1^st applicant would be ill-treated or even killed by her maternal uncle for accusing her to steal a mobile phone and she had filed a complaint against him for his false accusation; and (3) the 2^nd applicant would be discriminated by the 1^st applicant’s family members for difference in religious belief as his father was a Muslim whereas the 1^st applicant’s family members were Catholic.

Withdrawal of the Leave Application

8.Before the Leave Application was dealt with, the Director informed this court on 29 September 2026 that the 1^st and 2^nd applicants had written a letter dated 18 September 2026 to withdraw the Leave Application. In the said letter, the 1^st applicant on behalf of herself and the 2^nd applicant stated that they withdrew their cases as they wanted to return to their home country as soon as possible, their issues in their home country had been resolved and they could return home.

9.There is no evidence to show that the 1^st and 2^nd applicants made the withdrawal application other than out of their own volition. With this withdrawal application, it is clear that they no longer wish to proceed with the Leave Application or any oral hearing of the Leave Application even though they had previously requested one.

10.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.”

11.Thus, it is not right to leave the action at large. The 1^st and 2^nd applicants’ application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the Leave Application.

Legal representation of the 2^nd applicant

12.The 2^nd applicant is a minor born in Hong Kong out of wedlock on 24 August 2018 and is represented by the 1^st applicant in the Leave Application.

13.There is no indication that the 1^st applicant had applied for legal aid for the 2^nd applicant and the 2^nd applicant is not legally represented in the Leave Application.

14.However, as the 2^nd applicant was legally represented before the Director, and both the 1^st and 2^nd applicants had applied to withdraw the Leave Application, this court considered that the lack of legal representation for the 2^nd applicant in the Leave Application was a mere irregularity and it would not prejudice the 2^nd applicant. Hence, this court waived the irregularity and proceeded 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 applicants had confirmed that their issues in their home country had been resolved. In other words, it was safe for them to return to their country. Thus, the basis of their non-refoulement claim no longer exists.

16.It is clear that the applicants no longer need 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 Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicants to claim non-refoulement protection as it was no longer unsafe for them to return to their 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).

19.It is therefore otiose and pointless to grant leave to the applicants 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 1^st and 2^nd applicants’ application to withdraw the application for leave to apply for judicial review is refused, and the Leave Application in respect of both the 1^st and 2^nd applicants is dismissed.

Dated the 14^th day of October 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 applicants/the applicants’ solicitors on: 14/10/2026 Applicants’ 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: 14/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 16757-58 Director of Immigration Putative interested party’s ref. no.: QA T/C 1006-7/19 (formerly RBCZ 10777-8/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)