UMMU NIHAYAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 544/2024

[2026] HKCFI 2580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 544 OF 2024

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 or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

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 2 April 2024, 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 29 September 2023 (“the Board’s Decision”).

2.  The Board found that the applicant was unable to make out her claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 4 July 2023 and confirmed the same, which rejected the applicant’s non-refoulement claims.

Amendments

3.  The applicant named “Torture Claims Appeal Board Non-refoulement Claims Petition Office” as both the putative respondent and the putative interested party in Form 86, when only the Board should be the putative respondent, and the Director should be the putative interested party.

4.  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 party at all.

5.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and the name of the putative interested party is amended to “Director of Immigration”.

Late application

6.  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.

7.  However, the applicant filed Form 86 on 2 April 2024, which was more than 6 months after the Board’s Decision (made on 29 September 2023). The applicant was hence late for more than 3 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

8.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time 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.

9.  The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application.

10.  A delay of more than 3 months is substantial, and there is no reason for this court to extend the time for the applicant to file the Leave Application when she did not provide any explanation for the delay at all.

11.  Thus, this court is not prepared to extend the time for the applicant to file the Leave Application, even if an application for extension of time was made. The Leave Application can be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will still deal with the Leave Application.

The applicant’s case

13.  The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed, ill-treated and/or killed by her husband as he had physically abused her in the past.

Withdrawal of the Leave Application

14.  Before the Leave Application was dealt with, the applicant sent a letter dated 29 December 2025 to this court to cancel and close all her cases including the Leave Application. The Director also informed this court on 5 January 2026 that the applicant had written a letter dated 30 December 2025 to close her case because she wanted to go back to her home town.

15.  As stated in the applicant’s letter dated 29 December 2025, the reason for her cancellation of the Leave Application was that she wanted to go back to her country Indonesia and her life was already safe in her home town.

16.  The Director further informed this court on 19 March 2026 that the applicant had been removed from Hong Kong during the period from 2 March 2026 to 15 March 2026.

17.  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.

18.  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.”

19.  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

20.  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 Indonesia. In other words, the basis of her non-refoulement claim no longer exists.

21.  It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose.

22.  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).

23.  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).

24.  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

25.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

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

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