DO THI HA v. TORTURE CLAIMS APPEAL BOARD

HCAL 280/2023

[2026] HKCFI 186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 280 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.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

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 23 February 2023, 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 February 2023 (“the Board’s Decision”).

2.  The Board found that the applicant had failed to substantiate her claim for non-refoulement protection on all the applicable grounds under the Unified Screening Mechanism. Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 31 August 2021 and confirmed the same.

Amendments

3.  In Form 86, the applicant named “Torture Claims Appeal Board / Non-refoulement Claims Petition Office” and the Director as the putative respondents but did not name any putative interested party.

4.  In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.  The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to add “Director of Immigration” as the putative interested party.

The applicant’s case

7.  The applicant claimed for non-refoulement protection because if refouled to Vietnam, she would be harmed or even killed by her creditor for failing to repay the debt owed to the creditor.

Withdrawal of the Leave Application

8.  Before the Leave Application was dealt with, the applicant filed an ex parte application by way of her affirmation dated 10 October 2025 to withdraw the Leave Application. The Director also informed this court on 5 December 2025 that the applicant had been removed from Hong Kong during the period from 24 November 2025 to 30 November 2025.

9.  As stated in the applicant’s said affirmation, she wanted to return to her home country as her debt problems in Vietnam had been resolved, her life would no longer be in danger and it was safe for her to go back to her home 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 to have any oral hearing for 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 her issues in her home country had been resolved and it is safe for her to return to her home country. Thus, 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 for leave 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