Case Document

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HCAL 1849/2023

[2026] HKCFI 5730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1849 OF 2023

BETWEEN

	Ahmed Md Foysol	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. The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

2. 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 16 October 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision of the Torture Claims Appeal Board (“the Board”) dated 8 March 2023 (“the Board’s Decision”).

2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 13 August 2021 and confirmed the same, which rejected the applicant’s claim for non-refoulement protection.

Late application

3.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.

4.However, the applicant filed Form 86 on 16 October 2023, which was more than 7 months after the Board’s Decision (made on 8 March 2023). The applicant was hence late for more than 4 months in making the Leave Application.

5.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.

6.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. At the oral hearing before this court on 8 October 2026, the applicant explained the delay by saying that he received the Board’s Decision very late, and when he received it, he went to this court to make the Leave Application immediately.

7.However, he admitted at first that he received the Board’s Decision by post at his home address. This court then asked him why he would have received the Board’s Decision late as the Board’s Decision was sent to him by letter dated 8 March 2023. The applicant then changed his explanation by saying that he received a call from Wanchai and then he went to Wanchai to get the letter with the Board’s Decision. After receiving the letter, he submitted the Leave Application immediately.

8.It is clear that the applicant gave two inconsistent versions regarding how he received the Board’s Decision. This court does not find his explanation for the delay credible. Hence, there is no reasonable explanation for his delay.

9.A delay of more than 4 months is substantial, and this court is not prepared to grant any extension of time for filing the Leave Application when there is no reasonable explanation for the delay given by the applicant. Moreover, the applicant applied to withdraw the Leave Application at the oral hearing before this court as discussed below. Thus, the applicant no longer wishes 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, 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 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 Bangladesh, he would be subjected to ill-treatment or killed by persons from the Awami League as he was a member of the Jamaat-e-Islami Party.

Withdrawal at the oral hearing

13.The applicant requested for an oral hearing of the Leave Application and his case was heard on 8 October 2026.

14.At the oral hearing, the applicant informed this court that his problem in his country had been resolved and he was safe to return to his home country. Hence, the applicant applied to withdraw the Leave Application at the oral hearing.

15.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.

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, this court should deal with the Leave Application instead of leaving the action at large by granting leave to withdraw to the applicant.

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 it was safe for him to return to his country. Thus, the basis of his 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 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).

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 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 applicant/the applicant’s solicitors on: 14/10/2026 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: 14/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 18603 Director of Immigration Putative interested party’s ref. no. QA T/C 541/21 (formerly RBCZ 10886/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)