TO VAN LY v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

bjbj HCAL 788/2023 [2026] HKCFI 2739 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 788 OF 2023 BETWEEN To Van Ly Applicant Torture Claims Appeal Board Putative Respondent Director of Immigration Putative Interested Party Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge s decision (Order 53, rule 3) Following: be amended to Torture Claims Appeal Board , and Director of Immigration be added as the putative interested party. The applicant s application to withdraw the application for leave to apply for judicial review be refused. The applicant s application for leave to apply for judicial review be dismissed. Observations for the applicant: The Leave Application By way of Form 86 dated and filed on 22 May 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 22 February 2023 ( the Board s Decision ). The Board found that the applicant s claim for non-refoulement protection failed 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 29 June 2021, which rejected the applicant s non-refoulement claim. Amendments The applicant named the Board / Non-refoulement Claims Petition Office and the Director as the putative respondents and did not name any putative interested parties in Form 86, when only the Board should be the putative respondent and the Director should be the putative interested party. 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. Thus, on this court s own motion, the name of the putative respondent is amended to Torture Claims Appeal Board , and Director of Immigration is added as the putative interested party. The applicant s case The applicant claimed for non-refoulement protection because if refouled to Vietnam, he would be harmed or killed by his creditor, Tien, and Tien s subordinates due to his unsettled debts. Withdrawal of the Leave Application Before the Leave Application was dealt with, the Director informed this court on 12 March 2026 that the applicant had written a letter dated 6 March 2026 to withdraw the Leave Application. In his said letter, the applicant stated that his issues in Vietnam had been resolved and it was safe for him to return to Vietnam. 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. However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi HYPERLINK "https://legalref.judiciary.hk/lrs/common/search/jud_search_ncn.jsp?selDatabase=ALL&ncnValue=2022+HKCA+471" \t "_blank" [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. 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 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 issues in Vietnam had been resolved and it was safe for him to return to Vietnam. In other words, the basis of his non-refoulement claim no longer exists. It is clear that the applicant no longer needs non-refoulement protection and the intended judicial review serves no practical purpose. 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). 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 HYPERLINK "http://lrs.jud.hksarg/lrs/common/ju/ju_frame.jsp?DIS=84948&currpage=T" Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743 ). 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 For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed. Dated the 13th day of May 2026 ( Gladys LEE ) for Registrar, High Court 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 his solicitors must: 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)). Sent/Handed to the applicant/the applicant s solicitors on: 13/05/2026 Applicant s ref. no: Nil 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: 13/05/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent s ref. no.: USM 18245 Director of Immigration Putative interested party s ref. no.: QA T/C 424/21 (Formerly RBCZ 167/20) Department of Justice, Senior Assistant Law Officer `P`P`P`PA hk-> hk-> hk-> hk-> hk-> hk-> hln2 hk-> hk-> hk-> hk-> hln2 hk-> hk-> hk-> hln2 hk-> h3Q^ o_LE h3Q^ h3Q^ dPA5 wooib[b[Ti hIAF gdy8 hWb= ~p~hdh~X~ hWb= hr$* h)=N h/-d h/-d h/-d h/-d h/-d h/-d ~wpw~ i~VF hr$* hr$* mZmZmZ wuww n[[H8H h\ / (Civil Law) (Civil Litigation Unit 2) Form CALL-1 PAGE \* MERGEFORMAT hU!k hU!k hU!k {#:V [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml z)P -zh 83;3;{ ]XS1IH 0H!A Ssd- ]A3U mH#[ A\;> K}*7c ^I77 >g^* y')f ZI$G ,{uk< WV j k3 zjv3,j X1? 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The applicant s application for leave to apply for judicial review be dismissed. Observations for the pplicant: Times New Roman The Leave Application "Arial By way of Form 86 dated and filed on , 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 February the Board s Decision "Arial The Leave Application Title Headings _PID_HLINKS Microsoft Word 97-2003 Document MSWordDoc Word.Document.8