El Hachimi Mohamed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1429/2025

[2026] HKCFI 2840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1429 of 2025

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;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 6 May 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing his appeal against the Director’s Decision as described below.

2.The applicant appeared before the Court on 6 May 2026.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Morocco. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the bases as follows:

(1)  Institutional discrimination against him as a disabled person;

(2)  Persecution because of his membership of the social group of human rights activists or journalists in Morocco;

(3)  Persecution for his actual or perceived anti-government political view;

(4)  Arbitrary detention and torture for lengthy period before trial; and

(5)  No fair trial due to his anti-government political views.

5.Details of his claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001429_2025_files/the_Board's_Decision.pdf

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of Notice of Decision dated 24 October 2017 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 May 2020, 19 March 2021, 16 September 2024, and 27 November 2024 respectively, the Board conducted oral hearings for his appeal. He was represented by duty lawyers. The Director was also represented by government counsel. He had given oral evidence and answered the Board’s questions. The hearings were before different adjudicators. Therefore, there are 3 adjudicators who had signed on the Board’s Decision, confirming the contents.

9.Having considered the evidence, the Board made the findings below.

(1)  The Board rejected his evidence on the alleged Arrest Warrant. [172]-[173]

(2)  The Board does not accept that he would be persecuted if he returns to Morocco. [180]

(3)  Even if his claims as to the events in Morocco up to 2007 are accepted, they do not establish a credible basis for his claim that he faces a real or substantial risk of serious harm should he return to Morocco. [184]

(4)  His evidence that unidentified agents of the Morocco government were searching for him in Morocco in 2018 is not credible. [185]

(5)  He failed to establish that either Hanine or any member of the Istiqlaq Party would seek to harm him if he returns to Morocco. [186]

(6)  His claim that he would face severe harm or death if he returns to Morocco is unfounded. [187]

(7)  He failed to establish that in Morocco, a person faces a risk of persecution or other serious harm amounting to torture or BOR3 risk, or
BOR2 risk simply because he is disabled. The country of origin information (“COI”) does not support this proposition. [188]

(8)  The claimed facts on discrimination do not amount to persecution, relying on the authority of Luu The Truong v The Chairman of the Refugee Status Review Board and Another , HCAL 3261 of 2001. [189]-[190]

(9)  He failed to establish that he will face a real risk of ill-treatment, whether at the hands of the Istiqlaq Party, the police, or any other society if he returns to Morocco. The Board further finds that the discrimination, if any, faced by the applicant in the past provides any indication that he will face discrimination in the future that would amount to persecution. [194]

(10)  The applicant will not be subjected to any real risk of persecution if he returns to Morocco in respect of employment, religion, social stigma or family pressure. [208]-[213]

(11)  Internal relocation is viable. [214]-221]

(12)  The applicant failed to establish his claim on BOR 2 risk, BOR 3 risk and Torture risk. [222]-[230]

10.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 23 June 2025 for leave to apply for judicial review of the Board’s Decision.

12.In support of his application, the applicant has raised the grounds below to challenge the Board’s Decision.

(1)  Procedural impropriety: failure to properly consider BOR 2 risk; failure to properly consider the COI; failure to consider relocation; failure to consider psychological harm to him because of the multiple death threats.

(2)  Errors/misdirection in law: incorrect examination of the facts; that the government may be able to locate him and failing to take humanitarian ground into account and the government may not be able to protect him.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant submitted written submissions, saying that the Board failed to consider the documents, which had already been given to the Board, relating to:

(1)  Proof that Basma Association was a real registered organization;

(2)  Newspaper articles mentioning him as President of Basma and their activities;

(3)  A contract/agreement he signed with a government minister on behalf of Basma;

(4)  A bank cheque connected with Basma’s funding; and

(5)  His membership card for the Unified Socialist Party (PSU), proving his political involvement.

15.He further complained that the Board did not accept his evidence although documents had been given to it and it neglected the evidence of his disability, his religious belief and personal issues. He submitted that the Board’s findings were not consistent with his evidence before it. He did not have the transcript to prove it. However, he had told his duty lawyer about it. The duty lawyer told him that his case was over. If he wants to pursue further, he has to pay for private representation. He applied to the Director of Legal Aid and his application failed.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

17.From the Board’s Decision, it can be seen that the Board had already had extensive consideration of the applicant’s case and exploration of the COI in relation to his claim.

18.The reasons under paragraphs 14 and 15 are his opinions that the Board had not properly considered the evidence. Bearing in mind that the evidence was before the Board and the applicant was legally represented by duty lawyers, the way the Board handled and assessed the evidence is entirely within the Board’s province.

19.I note that the Board did not deal with the applicant’s claim of no fair trial for him as he is anti-government under paragraph 4(5), supra. As the Board found that he failed to establish that he would be prosecuted by the government if he returns to Morocco, see paragraph 9 (1), (2) (4) and (7), this issue has become insignificant for his application.

20.His complaint that the Board’s findings do not match with his evidence before the Board does not sustain because there is no evidence in support of this bare assertion.

21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

22.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 20^th day of May 2026

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