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HCAL 3546/2019
[2025] HKCFI 5625
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3546 OF 2019
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BETWEEN
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Arcega Julie Jr Pedrozo |
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”.
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 27 November 2019 and filed on 29 November 2019, the applicant 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 8 November 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003546_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 9 January 2019 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s claim for non-refoulement protection in Hong Kong.
Amendment
3. In Form 86, the applicant named “Torture Claims Appeal Board/ Non-refoulement Claims Petition office” as the putative respondent. However, the putative respondent should only be the Board.
4. The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.
The applicant’s case
6. 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.
7. In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, he feared being ill-treated due to his association with his late partner, Jonalinda Viernes Cristobal (“Jonalinda”), who was a drug dealer and was killed by bullets. The police were investigating Jonalinda’s case.
8. The applicant also claimed to be in fear of an “unknown guy” who appeared once every three months near his home. One or two months after Jonalinda’s death, the applicant was attacked by two masked strangers with helmets who opened fire on him and he received four shots when he was riding a motorcycle, as a result of which he stayed in a medical centre for two days. The applicant suspected that the gun attack on him and this unknown guy were relevant to Jonalinda’s death. He claimed that the gunmen and the unknown guy would attack and kill him if he stayed in the Philippines.
9. Further, the applicant himself used to be a drug user and then became a drug dealer. He feared that he might be killed by the police if he returned to the Philippines, as he was on the battle list of the police operation named “Tokhang”.
Oral hearing and withdrawal of the Leave Application
10. When this court asked the applicant for the grounds for his intended judicial review at the oral hearing before this court on 14 October 2025, the applicant replied that it was not necessary to provide grounds anymore, as he wanted to go back to the Philippines.
11. He confirmed that he wanted to withdraw the Leave Application and said that he would now be safe to return as there was a change of President in the Philippines. He also confirmed that he would not rely on the document with the heading “Grounds on which Relief is sought” which was attached to his Form 86.
12. There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition. With the withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application.
13. 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.”
14. Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant. This court will proceed to deal with the Leave Application.
Grounds for judicial review
15. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
16. As aforesaid, the applicant annexed a document with the heading “Ground on which Relief is sought” to his Form 86. This document was in fact used by many applicants in similar applications for applying leave to judicially review the Board’s decisions. It is like a template for such applicants and they just used the grounds stated therein without any regard to their own situations. Nevertheless, as the applicant is no longer relying on this document, this court will not deal with the grounds stated therein.
Discussion
17. It is not necessary for this court to discuss the merits of the Leave Application any more, as the applicant had confirmed that it would be safe for him to return to his home country and he did not want to rely on any grounds for the intended judicial review.
18. It is therefore clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.
19. 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).
20. 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).
21. 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 the Leave Application. Thus, the Leave Application ought to be dismissed.
Conclusion
22. For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.
Dated the 19th 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 his 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:
19 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:
19 November 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 15368/19/1/241/F995
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 5092/18
(formerly RBCZ 10936/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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