TIKKA BAHADUR SUNDAR SHARMA v. TORTURE CLAIMS APPEAL BOARD

HCAL 648/2026

[2026] HKCFI 3406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 648 OF 2026

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”.

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 13 March 2026 and filed on 27 March 2026, 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 9 March 2026 (“the Board’s Decision”).

2.  The Board refused the applicant’s late filing of his notice of appeal/petition against the decision of the Director of Immigration (“the Director”) dated 24 December 2025, which rejected the applicant’s non-refoulement claim.

Amendment

3.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the putative respondents, when only the Board should be the putative respondent.

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 respondent at all.

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

The applicant’s case

6.  The applicant claimed for non-refoulement protection because if refouled to India, he would be killed by his father’s loan shark.

Withdrawal of the Leave Application

7.  Before the Leave Application was dealt with, the Director informed this court on 29 May 2026 that the applicant had written a letter dated 29 May 2026 to withdraw the Leave Application. In his said letter, the applicant stated that his problem had been solved and he wanted to go back to his home country as soon as possible.

8.  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 even though he had previously requested one.

9.  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.”

10.  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

11.  It is not necessary for this court to discuss the merits of the intended judicial review any more, as the applicant had confirmed that his problem had been solved and he could go back to his home country. In other words, it is safe for him to return to his country and the basis of his non-refoulement claim no longer exists.

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

13.  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).

14.  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).

15.  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

16.  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