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HCAL 980/2021
[2025] HKCFI 5730
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 980 OF 2021
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BETWEEN
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Avila Joycelyn Nervez |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 9 April 2021”.
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 12 May 2021 and filed on 12 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the “Decision made b Ms Wong Hing Chun 09 April 2021”.
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 9 April 2021 (“the Board’s Decision”) in respect of the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 June 2013 (“the Director’s Decision”). Ms Wong Hing Chun made the Board’s Decision in her capacity as Deputy Chairperson of the Board. Thus, it is clear that the applicant was referring to the Board’s Decision in her Form 86.
3. The Board’s Decision can be viewed in the following hyperlink:
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000980_2021_files/the_Board's_Decision.pdf
4. The Board found that the applicant had failed to establish the alleged risk or fear to be well-founded and she was not entitled to non-refoulement protection under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) and CAT[1]. Hence, the Board rejected the applicant’s claim of Risk of Torture[2] under the Ordinance and CAT, dismissed her appeal and confirmed the Director’ Decision, which rejected her torture claim.
5. The Director had already assessed and rejected the applicant’s non-refoulement claim based on BOR 2 Risk[3], BOR 3 Risk[4] and Persecution Risk[5] in his decision dated 16 April 2018. The applicant did not file any Notice of Appeal/Petition in respect of that decision. Hence, it was not necessary for the Board to deal with these three risks in the Board’s Decision.
Amendments
6. The applicant named the Board, “Non-refoulement Petition Office” and the Director as the putative respondents and herself as the putative interested party in Form 86.
7. In fact, only the Board should be the putative respondent and the Director should be the putative interested party.
8. 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.
9. As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.
10. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 9 April 2021”.
Late application
11. 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.
12. However, the applicant filed her Form 86 on 12 July 2021, which was 3 months and 3 days after the Board’s Decision (made on 9 April 2021). The applicant was hence late for 3 days in making the Leave Application.
13. 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.
14. The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.
15. Although a delay of 3 days is not significant, the intended judicial review serves no practical purpose as discussed below.
16. 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.
The applicant’s case
17. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
18. In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be harmed or killed by a person called Conching, who was a member of the New People’s Army, and there was also risk of harm from a Barangay captain.
Removal of the applicant from Hong Kong
19. By a letter dated 16 July 2024, which was received by this court on the same date, the applicant requested to go back to her country the Philippines as soon as possible. She stated in the letter that she was willing to handle her air ticket for her departure and asked for help to make the arrangement. However, she did not make any application to withdraw the Leave Application.
20. Before the Leave Application could be dealt with by this court, on 14 October 2024, the Director informed this court that the applicant was removed from Hong Kong during the period from 7 October 2024 to 13 October 2024.
21. There is no evidence to show that the applicant made the above request to return to her own country other than out of her own volition. With the unambiguous intention that she wished to go back to her own country as soon as possible, it is clear that the applicant no longer wishes to proceed with the Leave Application.
Discussion
22. Section 37ZF(1) of the Ordinance stipulates that “A torture claim (whether a claim pending final determination or a substantiated claim) made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant (for whatever reason) leaves Hong Kong.”
23. As the applicant has left Hong Kong out of her own volition, her torture claim was treated as withdrawn by her departure pursuant to section 37ZF(1) of the Ordinance.
24. Since the Leave Application is only in respect of the Board’s Decision regarding her appeal against the Director’s Decision in rejecting her torture claim, which was treated as withdrawn as aforesaid, the intended judicial review no longer serves any practical purpose, and it is not necessary for this court to discuss the merits of the intended judicial review any more.
25. 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).
26. As the torture claim was treated as withdrawn, it is 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
27. For reasons aforesaid, the Leave Application is dismissed.
Dated the 25th day of November 2025
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( Irene LEE )
for Registrar, High Court
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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 the applicant’s solicitors must:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors on:
25 November 2025
Applicant’s ref. no:
Nil
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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:
25 November 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
TCAB 598/13/7/31/F184
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 700/18
(formerly RBCZ 3000865/14)
QA T/C 343/13
(formerly as RBCZ/728/11)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] CAT is the abbreviation for the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] Risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.
[3] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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