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HCAL 1699/2025
[2026] HKCFI 3240
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1699 OF 2025
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BETWEEN
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El Alami, Othmane |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.
2. The applicant’s applications to withdraw and to re-open the application for leave to apply for judicial review be refused.
3. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 29 July 2025, 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 13 May 2025 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001699_2025_files/the_Board's_Decision.pdf
2. The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 26 February 2025 and confirmed the same, which rejected the applicant’s non-refoulement claim.
Amendments
3. The applicant named the Board and Non-refoulement Claims Petition Office as both the putative respondents and the putative interested parties in Form 86.
4. In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.
5. 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 party at all.
6. Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.
The applicant’s case
7. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
8. In sum, the applicant claimed for non-refoulement protection because if refouled to Morocco, he would be harmed or killed by his supplier, Pato, and his people, and that he would be arrested and imprisoned for his failure to pay financial support to his separated wife.
Withdrawal and re-opening of the Leave Application
9. The applicant filed an ex parte application by way of his affirmation dated 31 March 2026 to cancel the Leave Application, but did not mention the reason for the application.
10. However, by an ex parte Summons dated 30 April 2026, the applicant applied to re-open his case, as the application for withdrawal on 31 March 2026 was made based on his misunderstanding that he would be safe in Morocco and all his problems were solved.
11. Since this court had not dealt with the applicant’s withdrawal application, it was not necessary for the applicant to apply for re-opening of the Leave Application.
12. It is clear that the applicant no longer wishes to proceed with the withdrawal application and hence it should be refused.
13. It is also clear that the application for re-opening of the Leave Application was unnecessary and should be refused as well.
14. Thus, this court orders that the applicant’s applications to withdraw and to re-open the Leave Application be refused.
Disposal on paper
15. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.
Grounds for judicial review
16. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
17. The applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation dated 29 July 2025. In his affirmation, the applicant merely reiterated the basis of his non-refoulement claim, namely his fear of Pato and his fear of arrest due to his failure to pay his wife, but added that (1) he had a new baby in Hong Kong and his baby would be killed if she was to return with the applicant, as the applicant was not divorced yet in Morocco; and (2) he had been to most of the churches in Hong Kong and that was not accepted in his country. The applicant asked this court to save his life and his baby’s life and let them live in Hong Kong.
Discussion
18. First of all, the applicant’s claims regarding his fear of Pato and his fear of arrest and imprisonment due to his failure to pay his wife had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.
19. The fact that he had a new baby in Hong Kong and his fear arising from his visits to the churches in Hong Kong were not presented before the Board for assessment of his non-refoulement claim.
20. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
21. Thus, the applicant cannot ask this court to assess or re-assess his non-refoulement claim based on matters that had not been presented to the Board.
22. Thus, none of the matters that were contained in the applicant’s affirmation dated 29 July 2025 could establish any valid ground to challenge the Board’s Decision.
23. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
24. Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.
25. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 25 April 2025 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person.
26. As laid out in paragraphs 42 to 51 of the Board’s Decision, the Board found that the applicant’s risk from Pato arose only from his failure to repay Pato due to a consignment agreement. The Board found that Pato did not have the intention to seriously harm or kill the applicant, as he could have done so long before the applicant left Morocco, but he did not. With regards to the applicant’s claimed fear of being arrested and imprisoned, the Board found that if the applicant was trying to avoid a lawful arrest due to his failure to comply with a court order to pay his separated wife, he was a fugitive from justice instead of a refugee. Thus, he was not entitled to be protected by non-refoulement protection. According to country of origin information (“COI”) of Morocco, the right to a fair trial was a fundamental, constitutional right belonging to every citizen of Morocco.
27. The Board also found that although it was true that corruption, petty and grand, was recognised as a persistent problem in Morocco, COI also suggested that the government had taken steps to combat and control the problem of corruption. Moreover, while the law already provided for protective mechanisms to citizens in general, the government also introduced a law which provided specific protection of public servants who reported corruption.
28. The Board had discussed the issue of internal relocation for the applicant in paragraphs 60 to 64 of the Board’s Decision. In gist, the Board noted that with regards to the applicant’s fear of being arrested or imprisoned, there was no issue of internal relocation because if he was indeed wanted by the police nationwide, there was nowhere he could escape. However, the Board concluded that he was more a fugitive than a refugee. On the other hand, internal relocation was a viable option for the applicant to avoid any perceived risk from Pato.
29. Thus, the Board had indeed assessed both aspects of the applicant’s claims and concluded that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the USM.
30. The finding of facts, including assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
31. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
32. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
33. For reasons aforesaid, the Leave Application is dismissed.
Dated the 3rd day of June 2026
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( Gladys LEE )
for Registrar, High Court
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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 the applicant’s solicitors must:
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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)).
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Sent/Handed to the applicant/the applicant’s solicitors on: 03/06/2026
Applicant’s ref. no:
Nil |
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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: 03/06/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 25833
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2631/24 (Formerly RBCZ 5002236/24) (T4S30)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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