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

HCAL 1967/2024

[2025] HKCFI 2470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1967 OF 2024

_____________

BETWEEN

_____________

_____________

D E C I S I O N

_____________

The application

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“Director”). The Director rejected his application (“Director’s Decision) and he appealed to the Torture Claims Appeal Board (“Board”). Having considered his evidence, the Board, by its decision dated 9 November 2023 (“Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 (“Form 86”) to apply for leave to apply for judicial review of the Board’s Decision (“Leave Application”).

3.  By an order dated 3 April 2025 (“Order”), the Court dismissed the Leave Application for the reason that there was no realistic prospect of success in his intended judicial review application.

4.  The applicant by a summons issued on 23 April 2025 (“Summons”) seeks extension of time to appeal against the Order (“Time Application”), as the 14-day period for him to file his appeal under Order 53 Rule 3(4) of the RHC ended on 17 April 2025, and hence he was 6 days late with his intended appeal.

5.  In his supporting affidavit filed on 23 April 2025 (“Affidavit”), the applicant explained that: “I did not receive the letter because my girlfriend only gave me April 21/25. I asked her why she gave to me so late. She said she did not get the letter because thers [sic] a mix up with her boss who controls the mail.”

6.  The applicant attended the court hearing of 23 May 2025 for the Summons (“Court Hearing”) and confirmed that his address for service provided to the Court was the address of his girlfriend. He received the Order only on 21 April 2025 when his girlfriend gave him the same.

Discussion

7.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

8.  The Order was sent to the address stated in a notice of change of address filed by the applicant on 10 March 2025 which was the same address stated in the Affidavit. It is the obligation of the applicant to provide to the Court a valid address for service at which he may receive correspondence from the Court timely. I do not find the applicant’s aforesaid explanation for late filing of his intended appeal satisfactory.

9.  In the applicant’s case, a delay of 6 days (of which 4 days were public holiday or Sunday) may not be substantial. More importantly, the applicant failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the Board’s Decision or why it may reasonably be argued that the Board’s decision was unfair or unreasonable either in the Summons or in the Affidavit, nor was he able to do so at the Court Hearing.

10.  The applicant claimed that he would be harmed or ill-treated by some fanatic Muslim Brotherhood terrorists due to religious conflict if he were returned to Morocco. He also worried that the family of a wanted person in Morocco would seek revenge on him because they believed the applicant made him re-arrested by the police.

11.  For reasons stated in the Board’s Decision, the Board found that 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 further found that the applicant’s claimed risk from the wanted person’s family lack 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. The Board dismissed the applicant’s appeal on such basis.

12.  The applicant did not state any proposed grounds of appeal in the Affidavit. He confirmed to the Court at the Court Hearing that he had unintentionally stated a wrong date for the Board’s Decision in the Form 86.

13.  The erroneous date stated in the Form 86 had been noted by the Court (§14 of the Judgment for this case). It has no impact on the decision of the Court herein.

14.  The applicant did not identify in the Affidavit or at the Court Hearing any error of law, procedural unfairness or irrationality in the Board’s Decision. He only reiterated at the Court Hearing that he had changed his religion to Christianity and if he returned to his home country, the situation for him would be worse.

15.  In the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal in contending that the Court was wrong in refusing the Leave Application.

16.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

17.  The applicant was not able to raise any valid reason to challenge the Board’s Decision in the Leave Application or in this Time Application. Thus, there is not any realistic prospect of success in his intended appeal.

18.  In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.