PHAM VAN THIEU v. DIRECTOR OF IMMIGRATION

HCAL 1306/2023

[2026] HKCFI 3407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1306 OF 2023

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.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

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 and filed on 28 July 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Director of Immigration (“the Director”) dated 27 June 2022 (“the Director’s Decision”).

2.  The Director found that the applicant failed to establish his non-refoulement claim on any of the applicable grounds under the Unified Screening Mechanism. Hence, the Director rejected the applicant’s non-refoulement claim.

3.  The applicant had in fact lodged an appeal/petition against the Director’s Decision to the Torture Claims Appeal Board, but withdrew his appeal/petition subsequently.

The applicant’s case

4.  The applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor Nguyen Van Ha due to his inability to repay his debt to the creditor.

Withdrawal of the Leave Application

5.  Before the Leave Application was dealt with, the applicant filed an ex parte application by way of his affirmation dated 19 May 2026 to withdraw the Leave Application. The applicant also sent a letter dated 18 May 2026 to the registrar of this court to withdraw the Leave Application. In both the said affirmation and the said letter, the applicant stated that it was safe for him to return to his country.

6.  There is no evidence to show that the applicant made the withdrawal application other than out of his 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 he had previously requested one.

7.  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.”

8.  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

9.  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 him to return to his country. In other words, the basis of his non-refoulement claim no longer exists.

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

11.  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).

12.  Even assuming that there were errors of law, procedural unfairness or irrationality in the Director’s Decision and the case were remitted to the Director 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 Director 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).

13.  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

14.  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

Form CALL-1