OMAR OUBELLA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1967/2024

[2025] HKCFI 1379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1967 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Omar Oubella (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 9 November 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 July 2023 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Moroccan. He was born on 29 September 1977 in Ait Abdellah, Morocco. He received 10 years of education and had 27 years of work experience in a supermarket and operating his own supermarket and cafe.

The Claim

3.  The Applicant claimed that he got into an argument with a neighbouring shop owner H in May 2019 because the Applicant became a Christian in early 2019. He claimed that H was an active Muslim extremist with ties to a Muslim Brotherhood terrorist group nicknamed Chechnya.

4.  The Applicant claimed that someone had once jammed the door lock of his café and on another occasion cut its internet cable. The Applicant suspected that these incidents were related to H. He had arguments with H which ended up in a fight with H.

5.  The Applicant said that his café was vandalized by 3 men in June 2019. He reported the vandalism to the police leading to a wanted person (“Wanted Person”) being re-arrested by the police in the shop of H. The Applicant claimed that the Wanted Person was an extremist of the Muslim Brotherhood and his family members blamed the Applicant for his re-arrest.

6.  The Applicant claimed that there were two attempts to attack him in August and December 2019, but he was not injured in those incidents. The Applicant claimed that he received phone calls after the 1^st attempted attack incident suggesting the attempted attack was an attempted revenge for the re-arrest of the Wanted Person. He moved to live in Turkey from January 2020 to October 2021 to avoid the troubles in Morocco.

7.  The Applicant stayed at his home in Morocco after returning from Turkey. On 12 November 2021 at around 8 pm, the Applicant saw two men riding on motorcycles towards him. One of them attacked the Applicant with a sword, injuring his back (“Attack”). The Applicant went to a public hospital for treatment and it took him one month to recover. He also made a police report about the Attack but he did not hear anything from the police.

8.  The Applicant was worried about his safety, so he moved to live in his friend’s place in Al Madina of Jadida for about a year. Nothing eventful happened in Jadida. The Applicant arranged his flight to Hong Kong with the help of a travel agent. He used his own passport to leave Morocco.

9.  The Applicant claimed that his original plan was to travel from Hong Kong to Turkey via Thailand. However, on about 6 December 2022, he learned from his mother that some Muslim Brotherhood terrorists were looking for him, so he changed his plan to seeking asylum protection in Hong Kong. His mother told him on 17 April 2023 that some strangers were looking for him outside her home and she advised him against coming back to Morocco.

10.  The Applicant claimed that he would be harmed or killed by members of the Muslim Brotherhood and family of the Wanted Person if he were returned to Morocco.

Procedural history

11.  The Applicant arrived in Hong Kong on 21 November 2022 as a visitor. He overstayed and surrendered to the Immigration Department on 22 December 2022. By a written representation of 13 January 2023, the Applicant lodged the Claim.

12.  The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”) (“persecution risk”).

13.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

14.  On 31 October 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of a decision dated 1 August 2021. The Applicant did not arrive in Hong Kong until 21 November 2022. It is not possible that there was a decision made against him in August 2021 in Hong Kong. The Applicant attended the court hearing of 6 March 2025 (“Court Hearing”) and confirmed that he intended to seek judicial review of the Broad’s Decision. I proceeded with this application on such basis.

15.  At the Court Hearing, the Applicant sought to adjourn the hearing for him to seek legal advice.

16.  The Applicant arrived in Hong Kong in November 2022. He had had more than 2 years since then to seek legal advice. According to §8 of the DOI Decision, the Applicant had been released under recognizance pending determination of the Claim. The Applicant confirmed at the Court Hearing that he was assisted by the Duty Lawyer Service (“DLS”) when he lodged the Claim with the Director. The Applicant well knew that he might seek legal assistance for further proceedings on the Claim. The DOI Decision and the Board’s Decision were issued in July and November 2023 respectively. The Applicant still had more than 1 year since then to seek legal advice.

17.  A court hearing for his case was previously scheduled for 30 December 2024 which hearing was vacated due to the Applicant making an application for legal aid on 17 December 2024, i.e. 2 weeks before the scheduled hearing. His legal aid application was rejected on 13 February 2025. By then, he still had 3 weeks before the Court Hearing to seek legal advice.

18.  It can be seen from the above that the Applicant had had ample time to seek legal advice if he so wished. It was his own choice not the seek legal advice before the Court Hearing. I see no justification to further adjourn the Court Hearing. I refused the Applicant’s adjournment application and proceeded to deal with this application at the Court Hearing.

The DOI Decision

19.  The Director noted that the low intensity and low frequency of past ill-treatment on the Applicant was indicative of a small future risk of harm upon the Applicant’s return. Further, the injuries he suffered from the Attack were not serious. The Director further noted that while in Morocco, his involvement in religion was limited and it was unlikely that he would be targeted by Islamic extremist in the country. Further, the Applicant was not a target of the Moroccan government as he was able to leave with his own passport.

20.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Moroccan government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary.

21.  The Director further found that internal relocation would be viable. If the Applicant moved to Casablanca or Rabat, it would be difficult for his enemies to locate him. The Director noted that in the past he was able to live peacefully in Jadida (§20 of the DOI Decision). After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

22.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

23.  The Board found that the Applicant exaggerated the alleged threats from the Muslim Brotherhood. It noted that the assailants in the Attack could have seriously injured the Applicant if they wanted to but refrained from doing so. It further found that other than the phone calls, there was nothing to connect the identities of the assailants to the Muslim Brotherhood.

24.  For reasons stated in §55 of the Board’s Decision, the Board found that the Applicant had failed to establish a case of severe punishment or ill-treatment on his return to Morocco. The Board did not accept that the Applicant faced any serious risk of harm in Morocco and found that he was not in need of non-refoulement protection.

25.  The Board also noted that in the past, the Applicant was able to live peacefully in Jadida for about a year. With his experience operating his own business, it would not be difficult for him to relocate to another city in Morocco, such as Tangier. The Board found that he could avoid any risk of harm from the Muslim Brotherhood if he relocated. Further, if the Applicant encountered any difficulty in Morocco, he could seek protection from the Moroccan government.

26.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

27.  In a judicial review, the court does not step into the shoes of the decision makers.

28.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

29.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

30.  The Applicant filed the Form 86 on 31 October 2024.

31.  Order 53 rule 4(1) of the Rules of the High Court (“RHC”) provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

32.  The Board’s Decision was issued on 9 November 2023. As such, the Applicant should have filed the Form 86 latest on 9 February 2024. The Form 86 was filed on 31 October 2024. It was late.

33.  The Applicant was late by more than 8 months. This is a substantial and inordinate delay. The Applicant explained in page 9 of his hand-written statement exhibited to the Supporting Affirmation (“Statement”) that it was his lack of knowledge in dealing with the proper procedure that led to the late filing. However, the Applicant made no application for time extension to file the Form 86.

34.  At the Court Hearing, the Applicant said that he had never received the Board’s Decision and thus did not know when to apply for judicial review. This is plainly in contradiction with what he had stated in the Statement as aforesaid. He further said that he was in jail until recently and the Board’s Decision might have been sent to his home address when he was in jail.

35.  In considering whether to extend time for applying for leave for judicial review, the court shall have regard to, inter alia, (i) the length of the delay; (ii) explanation for the delay; (iii) merits of the substantive application; (iv) prejudice; and (v) question of general public importance. (Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015)

36.  I do not accept that the Applicant had not received the Board’s Decision. The Applicant confirmed at the Court Hearing that in this application, he intended to seek judicial review of the Board’s Decision. If he had not received the Board’s Decision, he would have no basis to take out this application for judicial review of the Board’s Decision.

37.  Even if the Applicant was in jail, he might get assistance from the welfare officer of the Correctional Services Department to file application for judicial review. I note that in the Form 86, the Applicant’s stated address was at Tai Tam Gap Correctional Institution. This showed that the Applicant could still file application for judicial review when he was in jail. There might be some delay but would not be as much as 8 months.

38.  Ignorance of law or rules is generally not an acceptable explanation for delay in taking out court proceedings. I do not accept the aforesaid explanation of the Applicant as satisfactory explanation for his late filing of the Form 86.

39.  In the Po Fun Chan case (supra), Litton NPJ opined at §52 of the judgment that where an application was made many months after the time limit mentioned in order 53 rule 4 of the RHC, the judge was entitled to refuse leave, however strong the complaint might otherwise be. As such, this application is liable for dismissal on the ground of delay. For the sake of good order and completeness, I shall also consider the merits of the Applicant’s application before deciding on how to dispose of the matter.

40.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

41.  In the Supporting Affirmation, the Applicant exhibited the Statement, extracts of some COI from hearing bundle for the Appeal hearing before the Board, the Applicant’s certificate of Baptism, some medical documents on his injuries sustained in the Attack, and Notice to Persons Making a Non-refoulement Claim dated 1 August 2021 issued by the Immigration Department (which the Applicant mistakenly described as “Decision of my Non-Refoulement Claim” which might explain for the mistaken date stated in the Form 86 aforesaid). The COI, Baptism certificate and medical documents were documents previously submitted to the Director (§§7.64 and 7.65 of the DOI Decision)

42.  In the Statement, the Applicant repeated his claims and stated certain principles governing consideration of non-refoulement protection claim. He also raised the following complaints:

(1)  the Board acted in a procedurally unfair manner in dealing with his application without properly assessing the creditability of his application (pp 3-4 of the Statement);

(2)  the Board was procedurally improper or unfair when assessing whether to accept or not to accept explanation provided by him (p 10 of the Statement);

(3)  the Board unreasonably required him to response to questions that the Director had failed to take (p 10 of the Statement);

(4)  the Director and the Board were required to give reasons justifying their decisions (p 10 of the Statement); and

(5)  the Board relied on source of news which was not officially recognized or was simply hearsay (p 11 of the Statement).

43.  The Applicant maintained that it was still dangerous for him to return to Morocco and he did not believe that the local police in Morocco would protect him from harm (p 24 of the Statement).

44.  The Applicant said that the Board and the Director were required to give reasons for their decisions which the Board and the Director had done in this case. The Director had issued a 52 paragraphs decision which went into 40 pages setting out his reasons for his decision. The Board had also issued a 65 paragraphs decision which went into 28 pages setting out its findings on the Applicant’s case as well as the reasons for its decision. I see no merits of the Applicant’s aforesaid complaint.

45.  The Applicant alleged that the Board acted procedurally unfair without properly assessed the creditability of his application and his evidence.

46.  The Board had in §38 of the Board’s Decision set out its analysis and findings on the Applicant’s creditability and his case. For reasons stated in §§38 and 51 of the Board’s Decision, the Board found the Applicant’s evidence self-conflicting and exaggerated and his claim of risk and danger on his return to Morocco from the Muslim Brotherhood extremists implausible. The Board found that the Applicant’s claimed risk lacked credibility and he had failed to show that he was currently and personally at risk from the family members of the Wanted Person or that their influence would cover the whole of Morocco. He also failed to establish that his fear was well-founded that he was entitled to non-refoulement protection.

47.  No particulars were provided by the Applicant in the Supporting Affirmation or at the Court Hearing to substantiate his aforesaid complaint. Without particulars, such ground is not reasonably arguable.

48.  The Applicant complained that the Board had required him to respond to questions not previously raised by the Director. The Applicant provided no particulars in the Supporting Affirmation. He was unable to provide such particulars at the Court Hearing. The Appeal hearing before the Board was de novo in nature. The Board would raise questions at the Appeal hearing on matters causing concerns to the Board whether the same had previously been raised by the Director. This complaint of the Applicant has no merits whatsoever.

49.  The Applicant complained that the Board had relied on COI which were not officially recognized or outdated in making its decision. The Applicant exhibited certain COI to the Supporting Affirmation (pp 33, 36-37, 39, 44-47, 49-64 of the Exhibits) which included COI submitted by the Applicant to the Director (§§7.64-7.65 of the DOI Decision). These COI were documents extracted from the hearing bundle for the Appeal hearing and considered by the Board. The other COI considered by the Director and placed before the Board were listed in the Appendix to the DOI Decision. These COI were obtained from official websites of government departments, international organizations or news media. They included publication up to May 2023 (§43 of the Board’s Decision) when the Appeal hearing before the Board took place in October 2023. They were not outdated.

50.  The Applicant stated at the Court Hearing that the information available at the internet did not reflect the truth. People were still attacked or killed by Muslims in his country.

51.  As pointed out in the Nupur Mst case (supra), assessment of evidence, COI materials, risk of harm, availability of state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board. I find none in this case.

52.  The fact that the Applicant disagreed with the findings of the Board is not per se a ground for judicial review of the Board’s Decision. The Applicant was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision whether in the Supporting Affirmation or at the Court Hearing.

53.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

54.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

55.  In §§48-60 of the Board’s Decision, the Board assessed the Claim under each of the applicable grounds under the USM. The Board found that the Applicant’s claim of risk from the Muslim Brotherhood terrorists exaggerated and unreliable. The Board rejected his claim for protection under the torture risk. The Board founded that the Applicant had failed to establish a case of severe punishment or ill-treatment on his return to Morocco and his claim did not fall within the non-refoulement protection under the BOR 3 risk. His claim was also outside the grounds referred to in Article 33 of the Refugees Convention. The Board also rejected his claim under the persecution risk. The Board had not found that the Applicant would face a real risk or danger against his life in violation of BOR 2 should he be refouled back to Morocco.

56.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

57.  The Form 86 was filed out of time without leave of the court nor with satisfactory explanation for the late filing. Having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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