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HCAL 1832/2024
[2026] HKCFI 2517
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1832 OF 2024
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BETWEEN
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Nguyen Thi Hai Van |
Applicant |
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and |
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Director of Immigration |
1st Putative |
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Respondent |
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Torture Claims Appeal Board |
2nd 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, “Director of Immigration” be named as the 1st putative respondent, “Torture Claims Appeal Board” be added as the 2nd putative respondent, “Director of Immigration” be added as the putative interested party, and the decisions in respect of which relief is sought be amended to “Director of Immigration’s decision dated 18 November 2021 and Torture Claims Appeal Board’s decision dated 2 November 2022”.
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 and filed on 14 October 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of two decisions of the Director of Immigration (“the Director”) dated 2 November 2022 and 18 November 2021 respectively.
2. In fact, the Director made only one decision in respect of the applicant’s non-refoulement claim dated 18 November 2021 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism.
3. The Torture Claims Appeal Board (“the Board”) made a decision dated 2 November 2022 (“the Board’s Decision”) to confirm that the applicant had withdrawn her appeal/petition against the Director’s Decision by her written signification dated 2 November 2022.
4. Thus, the decision dated 2 November 2022 referred to by the applicant in her Form 86 should be the Board’s Decision.
Amendments
5. Since the applicant was making the Leave Application in respect of both the Director’s Decision and the Board’s Decision, the Director should be named as the 1st putative respondent and the Board should be added as the 2nd putative respondent in Form 86. The Director should also be the putative interested party in respect of the Board’s Decision.
6. Thus, on this court’s own motion, “Director of Immigration” is named as the 1st putative respondent, “Torture Claims Appeal Board” is added as the 2nd putative respondent, and “Director of Immigration” is added as the putative interested party.
7. As aforesaid, the decisions in respect of which relief is sought should be amended to “Director of Immigration’s decision dated 18 November 2021 and Torture Claims Appeal Board’s decision dated 2 November 2022”, and it is so amended on this court’s own motion.
The applicant’s case
8. The applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be harmed or killed by her creditor and the creditor’s men as she was unable to repay the debt owed to the creditor.
Withdrawal of the Leave Application
9. Before the Leave Application was dealt with, the applicant filed an ex-parte application by way of her affirmation dated 8 December 2025 to withdraw the Leave Application. The applicant also sent a letter dated 8 December 2025 to the Registrar of this court to withdraw the Leave Application. In both the said affirmation and the applicant’s said letter, she stated that the reason for her withdrawal of the Leave Application was that it was safe for her to return to her country.
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 was safe for her to return to her country and hence the basis of her non-refoulement claim 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 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 her to return to her 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).
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 6th day of May 2026
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( Gladys 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: 06/05/2026
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: 06/05/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
2nd Putative respondent’s ref. no.: USM 19347
Director of Immigration
1st Putative Respondent and Putative interested party’s ref. no.:
QA T/C 1739/21 (Formerly as RBCZ 5000116/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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