Re Siebel Harold Marlin

CACV 188/2025, [2026] HKCA 1875

On Appeal From [2026] HKCA 47

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 188 OF 2025

(ON APPEAL FROM HCAL NO 2102 OF 2019)

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J U D G M E N T

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

1.On 15 June 2026, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this court’s judgment of 19 January 2026 (“the Judgment”) ([2026] HKCA 47).  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Reuden Lai (“the Judge”) dated 2 April 2025, by which the Judge refused his application for leave to apply for judicial review ([2025] HKCFI 1341).

2.The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.Pursuant to section 24(2) of the HKCFAO, an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the deadline for the applicant to seek leave to appeal against the Judgment fell on 16 February 2026.  Accordingly, the applicant was almost four months late in taking out his application for leave to appeal to the Court of Final Appeal.

5.In his Notice of Motion, the applicant stated:

“1. Failure to consider the Country of Origin condition that the authority of my country would not able to protect me from my enemies.  My life still will be at danger.

2. Failure to consider that the content in my claim by the reasons that the Torture Claims Appeal Board (the TCAB) and the Director’s (the Director’s) did their duty properly to assessment of my claim.

3. The Authority failure to proper used law in my claim that under BOR 2 and BOR 3 risk.” (sic)

6.Pursuant to Practice Direction 2.1, the applicant lodged written submissions in support of his present application on 23 June 2026.  In those submissions, the applicant complained that the Board was procedurally unfair as its determination in failing to consider or give weight to relevant considerations, and he further asserted that his enemy remained powerful.  He also complained that the Board had erred in law in failing to consider the country of origin condition that his country would not be able to protect him from his enemies.  He further claimed that the decision makers did not “observe [his] fear properly” and it remained unsafe for him to return to home country.

7.At the outset, the applicant’s delay of almost four months was extremely substantial and he failed to provide any reason, let alone any good and sufficient reason, to explain his delay.

8.More importantly, the applicant’s application is plainly devoid of merit.  His assertions are all vague, bare and unsupported by any particulars or evidence.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, he fails to specifically point out any error in the Judgment.  His complaints are all directed at the Board’s Decision which are not proper grounds of appeal.  His intended appeal is plainly a nonstarter and his present application should be dismissed on this basis alone.

9.Furthermore, his allegations are mostly new and not raised before the Judge or this court in the appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact‑sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  In any event, as evident from the Board’s Decision at [41] ‑ [100], the Board had given thorough consideration to the applicant’s claims under all applicable grounds including BOR2 risk and BOR3 risk, and had taken into account the relevant country of origin information.  As noted by the Judge at [34] ‑ [41] of the Leave Decision, there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non‑refoulement proceedings and that the Board’s Decision was not Wednesbury unreasonable or irrational.

10.Further and in any event, even taking them at their highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

11.Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

12.For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  We dismiss the Notice of Motion.

The applicant acting in person