|
HCAL 983/2022
[2026] HKCFI 250
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 983 OF 2022
|
BETWEEN
|
| |
Tran Thi Tuyet |
Applicant |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
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 22 September 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 29 June 2022 (“the Director’s 2022 Decision”), which refused the applicant’s request to make a subsequent claim for non-refoulement protection (“the Request”). The Request was made by way of the applicant’s letter dated 4 March 2022.
Procedural history of the applicant’s previous non-refoulement claim
2. The applicant is a female Vietnamese who made her first claim for non-refoulement protection on 22 July 2014. Her case was that if refouled to Vietnam, she would be harmed or killed by her creditor as she could not repay the debt.
3. The Director rejected the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (“the USM”) on 25 January 2017 (“the Director’s 2017 Decision”). The applicant filed an appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s 2017 Decision on 8 February 2017.
4. However, by way of a letter dated 2 August 2017, the applicant withdrew her appeal/petition against the Director’s 2017 Decision. In response to the applicant’s said letter, the Board gave direction on 8 August 2017 that her appeal/petition was dismissed and the Director’s 2017 Decision was confirmed. The applicant was repatriated to Vietnam on 2 August 2017.
The applicant’s subsequent claim
5. The applicant was arrested by the Hong Kong police on 15 February 2022. On 4 March 2022, the applicant made the Request to the Director.
6. After consideration of all the information and assessment of the Request, the Director decided that the applicant could not make a subsequent claim under the USM.
The applicant’s case
7. In her first claim for non-refoulement protection, the applicant claimed that if refouled to Vietnam, she would be harmed or killed by her creditor named Tran Thi Chung. The applicant claimed that when she returned to Vietnam in 2017, her family repaid her debt to the creditor. In the Request, however, the applicant claimed that another creditor named Nguyen Van Doan would harm or kill her, as she was unable to repay a loan of 1 billion Vietnamese Dong borrowed from this new creditor.
Withdrawal of the Leave Application
8. Before the Leave Application was dealt with, the applicant filed an ex parte application by way of her affirmation dated 30 October 2025 to withdraw the Leave Application.
9. As stated in the applicant’s said affirmation, her debt problem in her home country had been solved, her life would no longer be in danger and it would be safe for her to return.
10. There is no evidence to show that the applicant made the 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.
11. 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.”
12. Thus, it is not right to leave the action at large. The applicant’s application to withdraw the Leave Application is therefore refused and this court will proceed to deal with the Leave Application.
Discussion
13. 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 is safe for her to return to her home country. Thus, the basis of her subsequent claim for non-refoulement protection no longer exists.
14. It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.
15. 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).
16. Even assuming that there were errors of law, procedural unfairness or irrationality in the Director’s 2022 Decision and the case were remitted to the Director 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 primary decision-makers including the Director and 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).
17. 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
18. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 14th day of January 2026
| |
(Irene 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 January 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 January 2026
Director of Immigration
Putative respondent’s ref. no.:
L/M (25530) in ImmD RA 7/37/C
(formerly RBCZ/3001535/14)
QA T/C 2986/16
(formerly RBCZ 3001535/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|