Ouabicha Abdenbi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1331/2023

[2026] HKCFI 5795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1331 of 2023

BETWEEN

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 Applicant being absent in open court;

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

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 17 February 2023 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 17 May 2023. His application was filed on 2 August 2023, which is late for more than 2 months. This issue will be dealt with below.

2.The applicant was absent at a hearing on 5 October 2026. I shall deal with his application on the papers.

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 on the basis that, if refouled, he will be harmed or killed by his enemies due to land dispute. Details of the applicant’s story can be found in the Board’s Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001331_2023_files/the_Board's_Decision.pdf

The Director’s Decision

5.The Director considered his non-refoulement claim on the following risks:

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

(2)  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”);

(3)  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

(4)  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”).

6.By way of Notice of Decision dated 17 June 2022 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated. The applicant appealed to the Board.

The Board’s Decision

7.On 24 October 2022, the Board conducted an oral hearing. The applicant had given oral evidence and answered the Board’s questions.

8.Having considered the evidence, the Board found that there were discrepancies in his evidence that caused his evidence unreliable [44]; that he has not given a reasonable explanation for the very lengthy delay to apply for non‑refoulement protection in Hong Kong [48]; that he appeared willing to make statements that were simply not true if he thought it would assist him [49]; and the Board did not find that his fear was well-founded [55]; and the Board found that he failed to establish any of the applicable risks [60]-[65].

9.For the above reasons, the Board dismissed his appeal against the Director’s Decision.

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

10.The applicant filed Form 86 dated 2 August 2023 for leave to apply for judicial review of the Board’s Decision.

11.In support of his application, the applicant stated in his affirmation that he wanted to apply for leave to apply for judicial review of the Board’s Decision without specifying any reason to challenge it.

DISCUSSION

12.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the court has to consider, inter alia, the prospect of success of the intended application. I shall consider the merits of the applicant’s case.

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. For the reasons given, the Board rejected his evidence, so the applicant has no factual basis in support of his claim. The applicant has raised no reason to refute the Board’s finding of the facts of his case. There is no evidence that the Board’s Decision bears error in law or procedural irregularity, or otherwise is irrational.

15.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.”

16.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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

Dated the 21^st day of October 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