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HCAL 373/2025
[2026] HKCFI 1312
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 373 OF 2025
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BETWEEN
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Novi Kartika Sari |
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” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s application for leave 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 10 February 2025, 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 10 July 2024 (“the Board’s Decision”).
2. The Board found that the applicant’s non-refoulement claim failed on all the applicable grounds under the Unified Screening Mechanism. Hence, the Board rejected the applicant’s appeal/petition against decision of the Director of Immigration (“the Director”) dated 27 March 2024 and confirmed the same.
Amendments
3. The applicant named “Torture Claims Appeal Board Non-Refoulement Claims Petition Office” as both the putative respondents and the putative interested parties 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, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
6. The applicant claimed for non-refoulement protection because if refouled to Indonesia, she would be harmed or killed by her ex-husband as she refused to remit money to him, and she would also be harmed or killed by her parents as she had a girlfriend in Hong Kong.
Late application
7. 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.
8. However, the applicant filed Form 86 on 10 February 2025, which was 7 months after the Board’s Decision (made on 10 July 2024). The applicant was hence late for 4 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.
9. 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.
10. The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.
11. Thus, there is simply no reason for this court 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.
Withdrawal of the Leave Application
12. On 13 November 2025, the applicant filed an ex-parte application by way of her affirmation dated the same date to cancel the Leave Application. However, she did not give any reason why she wanted to cancel the Leave Application.
13. Nevertheless, on 5 January 2026, the Director informed this court that the applicant had written a submission dated 21 November 2025 to withdraw the Leave Application. In the applicant’s said submission, the applicant stated that her issues in her home country had been resolved and she could return home.
14. There is no evidence to show that the applicant made the above withdrawal application other than out of her own volition. With the 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.
15. 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.”
16. Thus, it is 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.
Discussion
17. It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that her issues in her home country had been resolved. In other words, the basis of her non-refoulement claim no longer exists.
18. It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review 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 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).
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 it. 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 3rd day of March 2026
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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:
3 March 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:
3 March 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 23405
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 587/24
(Formerly RBCZ 5000571/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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