JOUHAR AMEUR v. TORTURE CLAIMS APPEAL BOARD

HCAL 837/2021

[2026] HKCFI 2616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 837 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

                        Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 60-year-old national of Morocco who arrived in Hong Kong on 27 August 2019 as a visitor with permission to remain as such up to 26 September 2019 when he did not depart and instead overstayed, and on 2 October 2019 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to he would be harmed or killed by 3 friends/creditors for failing to repay his debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Sidi Othmane, Casablanca, Morocco. After leaving school he worked as a car mechanic in his home district to make his living.

3.  In April 2019 he started his own car repair business with capital borrowed from 3 of his friends Said, Farid and Nabel who were garments businessmen from the same neighborhood, but a few months later one day in June 2019 they came to his shop to demand for repayment of his loan, and when the Applicant was unable to do so, they were angry and made threats against him, whereupon the Applicant became fearful for his life and fled from the scene and ran home.

4.  On the next day the Applicant packed his belongings and made arrangements to leave the country, which he did on 2 July 2019 when he departed Morocco for Turkey, and from there he travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 December 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 14 May 2020 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his friends/creditors upon his return to Morocco as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Morocco with a large population of 35 million people spread across a vast territory of more than 446,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for his friends/creditors to locate him.

7.  On 22 May 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 22 April 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 May 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from his 3 friends/creditors over his outstanding debts but found no reliable evidence of any real intention of them to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Morocco as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 7 June 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

10.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Morocco, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

12.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

13.  As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

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