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

CAMP 132/2025, [2026] HKCA 184

On An Intended Appeal From [2025] HKCFI 1379 &

[2025] HKCFI 2470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 132 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 1967 OF 2024)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 17 July 2025, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge Reuden Lai (“the Judge”) dated 13 June 2025 refusing to grant to the Applicant an extension of time to appeal against the Judge’s earlier order dated 3 April 2025 (“the Order”) refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 9 November 2023, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 July 2023 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents in this case, we are of the view that it is appropriate to determine the present application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Morocco. He entered Hong Kong as a visitor on 21 November 2022, and had overstayed since 22 December 2022. On 22 December 2022, he surrendered himself to the Immigration Department. On 13 January 2023, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by (i) the fanatic Muslim Brotherhood terrorists because he had converted to Christianity and had conflicts with his Muslim neighbour (Abed Al Hamid) who, according to him, was connected to the Muslim Brotherhood terrorists, over their religious beliefs, and (ii) the family of a person wanted by the local police (“the Wanted Person”) because he once made a report to the police which led to the arrest of the Wanted Person. Details of the Applicant’s claim have been summarised by the Judge at §§3-10 of the CALL-1 Form ([2025] HKCFI 1379).

5.  By a Notice of Decision dated 27 July 2023 (“the Director’s Decision”), the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

6.  The Applicant appealed the Director’s Decision to the Board. On 9 November 2023, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §§23-26 of the CALL-1 Form, as follows:

“[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 [unified screening mechanism]. The Board affirmed the [Director’s] Decision and dismissed the Appeal.”

7.  On 31 October 2024, the Applicant filed a Form 86 to apply for leave to apply for judicial review of “a decision dated 1 August 2021”. By then, he was over eight months late in applying for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86.

8.  In his supporting affirmation of the same date, the Applicant exhibited a statement (“the Statement”) setting out various complaints, which the Judge summarised at §42 of the CALL-1 Form, as follows:

“(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).”

9.  The Applicant said in the Statement that the late filing of the Form 86 was due to his lack of knowledge about the proper procedure for applying for leave to apply for judicial review. He also said that it was still dangerous for him to return to Morocco, and he did not believe that state protection would be available to him in Morocco.

10.  The Applicant attended a hearing before the Judge on 6 March 2025. At the hearing, he confirmed that the decision which he intended to challenge was the Board’s Decision. He explained that he did not receive the Board’s Decision because it might have been sent to his home address while he was in jail. He said that he did not know when to apply for judicial review.

THE JUDGE’S DECISION

11.  On 3 April 2025, the Judge gave a written decision refusing to extend time for the Applicant to apply for leave to apply for judicial review of the Board’s Decision, and dismissed the leave application (“the Judge’s Decision”).

12.  The Judge considered that the Applicant’s delay was substantial and inordinate, and did not consider the Applicant had provided any satisfactory explanation for the delay. The Judge considered that the leave application was liable to be dismissed on the ground of delay alone (see §§37-39 of the CALL-1 Form).

13.  In any event, the Judge proceeded to consider the substance of the Applicant’s complaints and refused to grant leave to apply for judicial review on the merits for the reasons fully set out at §§44-56 of the CALL-1 Form, which it is not necessary to repeat in this judgment. Suffice it to say that the Judge considered the complaints raised by the Applicant had no merits or were not reasonably arguable. The Judge found that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the determination of the Applicant’s non-refoulement claim. The Judge also did not consider the Board’s Decision to be Wednesbury unreasonable or irrational.

14.  On 23 April 2025, the Applicant applied by summons for an extension of time to appeal against the Order. By then, he was six days late to lodge his appeal. On 13 June 2025, the Judge dismissed the application, holding that the Applicant had failed to raise any valid reason to challenge the Board’s Decision and there was no realistic prospect of success in his intended appeal ([2025] HKCFI 2470).

THIS APPLICATION

15.  By a summons taken out on 17 July 2025, the Applicant applies to the Court of Appeal for an extension of time to appeal against the Judge’s order of 13 June 2025.

16.  In his affirmation of the same date, the Applicant says that he was in jail and has been facing financial difficulties since his arrival in Hong Kong. He also states that he now “started recreating [his] case” [sic].

17.  Attached to his affirmation is a 12-page document (“the Attached Document”), in which the Applicant puts forward the following intended grounds of appeal:

(1)  The Director rejected his claim based on facts that were not within his knowledge, and the Board acted in a procedurally unfair manner in assessing his explanations and acted unreasonably in demanding his response to the questions raised[5] (“Ground 1”).

(2)  His claim was determined unfairly by the Director and the Board because (i) he was deprived of his basic right to be informed of his legal rights or other information, (ii) he was not provided with legal or language assistance, as a result of which he could not provide “full grounds for an appeal” in the Form 86, and (iii) he was not allowed to attend an oral hearing when it was found that his claim was not credible[6] (“Ground 2”).

(3)  The fact that there were separate decisions made at different times does not mean that he should not be entitled to appeal against those decisions out of time[7] (“Ground 3”).

(4)  The Director and/or the Board failed to consider or adequately consider the potential threat of extra-judicial killing and the presence of state acquiescence in his home country[8] (“Ground 4”).

(5)  The Board erred in placing excessive reliance on country of origin information (“COI”) without considering his personal background and experience and the COI that was supportive of his claim[9] (“Ground 5”).

(6)  The Board erred in giving him insufficient time and opportunity to arrange relevant evidence in support of his claim[10] (“Ground 6”).

(7)  The Director and the Board failed to make any specific assessment of his claim having regard to his particular vulnerabilities and individual circumstances[11] (“Ground 7”).

18.  The Applicant has failed to lodge written submissions in support of his application, contrary to the directions given by the Registrar of Civil Appeals on 17 July 2025.

DISCUSSION

19.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

20.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

21.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

22.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

23.  Further, the assessment of evidence, COI, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

24.  Since the Applicant’s delay in lodging his appeal is not substantial, we shall focus on the merits of his intended appeal.

25.  The grounds raised in the Applicant’s affirmation in support of the present application are mostly directed at the decisions of the Director or the Board, but not the Judge’s Decision. They amount effectively to an invitation to this Court to review the evidence, or examine the decisions of the Director and the Board, afresh. This is not the proper function of the Court of Appeal. The Applicant’s assertions that he was previously in jail and has been in financial difficulties do not amount to any good reason for the Court to depart from the well-established approach mentioned in §§22-23 above.

26.  For the sake of completeness, we shall briefly deal with the grounds raised by the Applicant.

27.  Grounds 1 and 2 are essentially repetitions of matters raised before the Judge in the proceedings below, but correctly rejected by the Judge for the reasons set out at §§16, 17 and 45-48 of the CALL-1 Form. In respect of his complaint under Ground 2 that he lacked language assistance, it is a new point which was not raised in the proceedings below. He is not entitled to raise it for the first time in the Court of Appeal. In any event, it has no merit. The Applicant was assisted by the Duty Lawyer Service in relation to the assessment of his non-refoulement claim by the Director, and plainly had both legal and language assistance at that stage. In his Appeal/Petition against the Director’s Decision to the Board, he requested for assistance from an interpreter. There is no reason to believe that his request for language assistance was denied at the hearing before the Board. At the hearings before the Judge, he was also assisted by interpreters qualified in the Arabic and English languages. Further, all the court documents in relation to his application for leave to apply for judicial review and the two applications for extension of time to appeal were written in English and sufficiently expressed. Those documents indicate that the Applicant is either conversant with English, or has access to language assistance as needed. Finally, the Applicant has failed to show that he was inhibited from advancing any particular point or ground before the Board or before the Judge by reason of the alleged lack of language assistance.

28.  Ground 3 is misconceived. The Judge was entitled to dismiss the Applicant’s application for leave to apply for judicial review pursuant to Order 53, Rule 4 of the Rules of the High Court in view of his substantial delay in taking out his leave application, for which he had not offered any satisfactory explanation. In any event, the Judge also considered the merits of the Applicant’s intended judicial review and concluded that it was not reasonably arguable.

29.  Grounds 4 and 5 are vague and general, and have no merits. We agree with the Judge at §52 of the CALL-1 Form that there is no basis for the court to interfere with the Board’s assessment of the evidence, COI and risk of harm to the Applicant upon his refoulement.

30.  Both Grounds 6 and 7 are new points which were not raised below. The Applicant is not entitled to raise them for the first time in this Court. In any event, they have no merits.

31.  In respect of Ground 6, the Judge had considered the documents exhibited to the Applicant’s supporting affirmation dated 17 October 2024 (see §41 of the CALL-1 Form). The Applicant has failed to identify what other relevant evidence he could have arranged to produce to the Board.

32.  As for Ground 7, the Applicant asserts that the Board failed to discharge its duty of joint endeavour in not identifying or exploring the specific risk of harm that he would face upon his refoulement[12]. In our view, it is clear from the Board’s Decision that the Board gave the Applicant a reasonable opportunity to state his case and enquired into the relevant issues appropriately (see §§37 and 38 of the Board’s Decision). The Board plainly had considered the Applicant’s claim with reference to all applicable risks on the basis of the case advanced and clarified by the Applicant before the Board. The allegation that the Board failed to discharge its duty of joint endeavour is nothing more than a bare assertion without substance.

33.  The Applicant has failed to identify or show any error in the Judge’s Decision, and has failed to raise any viable ground of appeal against the Order.

34.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

35.  The Applicant’s summons taken out on 17 July 2025 is dismissed.