Macandza Manuel Jose v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 423/2018

[2019] HKCFI 399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 423 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 21 July 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:-

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.The applicant is a 35-year-old national of Mozambique who arrived in Hong Kong on 30 September 2010 with permission to remain as a visitor up to 14 October 2010 when he did not depart and instead overstayed and was arrested by police on 25 October 2011.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Mozambique he would be harmed or killed by his paternal uncle over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Xai Xai, Gaza, Mozambique.  After leaving school he worked as a farmer in his family’s farmland.

3.In 2002 his widowed paternal grandmother told the family that the applicant should inherit her land in the village upon her death but subsequently passed away without making any will, hence the paternal uncle being her eldest son insisted that in the absence of any will he as the eldest son should according to the intestacy law in their village inherit the land instead of the applicant, and as a result there were many disputes and conflicts between the uncle and the applicant’s family over the grandmother’s land, which led to the crops planted by the applicant on the land being destroyed by the uncle in 2005, and when the applicant confronted his uncle about the matter at his office, it turned into a heated argument that the applicant was subsequently pushed out of the door.

4.A few weeks later whilst the applicant was working on the land, the uncle’s son together with two other men came and demanded that he left his father’s land, and when the applicant refused, the three of them started to assault him by punching and kicking him that resulted in bruises all over his body, and before they left they warned him never to work on the land again.

5.The applicant however refused to listen and continued to work on the land that one day in 2006 when his uncle came to demand him to leave, they broke into another argument that descended into a fight that caused an injury to the uncle’s right eye, and when his son leant about it, he came to the applicant’s home and punched him on the face, and a week later he returned with more men armed with sticks, but when the applicant saw them he fled and hid in a friend’s home.

6.A few months later the applicant returned to work on the land to find some workers hired by his uncle building a house on the land, and so the applicant told the workers to leave as the land belonged to him.  A week later the uncle’s son returned with several men to drive the applicant away and to resume the construction on the land.

7.The dispute between the applicant and his uncle continued to deteriorate without abate and became more violent when in October 2007 the uncle’s son and his men started to use more deadly weapons such as knives and iron rod in their attacks of the applicant that he felt that his life was at risk and began to take shelter at various places of his friends, but when he heard from his family that his uncle and his men were still looking everywhere for him, the applicant decided to leave Mozambique for his own safety, and departed for Swaziland, South Africa, Malawi and Kenya before coming to Hong Kong on 30 September 2010, and when he was subsequently arrested for overstaying in Hong Kong, he raised his non-refoulement claim for protection, and later completed a Non-refoulement Claim Form on 29 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 6 July 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his uncle and his men to the applicant upon his return to Mozambique as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family dispute between them without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Mozambique with a large population of 23 million people spread across a vast territory of more than 799,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Mozambique away from his home district in large cities such as Beira or Nampula where it would be difficult if not impossible for his uncle or his men to locate him.

10.By a Notice of Further Decision dated 25 October 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 20 July 2015, and for which he attended an oral hearing on 6 December 2016 before the Board but declined to give any evidence or to answer questions from the adjudicator for the Board.  On 21 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found many inconsistencies, contradictions and implausibility in his account that the evidence of his claim was not credible, that even if his claim were true that it was a private dispute with his uncle that state or police protection and reasonable internal relocation alternatives are available to him that his claim failed on all applicable grounds.

13.On 15 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no grounds for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely exhibited copies of their decisions and his hearing bundle for his appeal before the Board, nor did he request for any oral hearing of his application.

14.By then he was of course way out of time with his Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

15.In considering whether to extend time the Court will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015.

16.In the applicant’s case, as held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision, and it is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.

17.As for the Board’s decision, as it was made on 21 July 2017, the last date for the applicant to make his application fell on 21 October 2017 under the said rule, and hence when he filed his Form 86 on 15 March 2018, he was almost five months late which must be regarded as a very substantial delay, for which he did not provide any explanation, and in the absence of any grounds proposed by him for his intended application, I am unable to see any merits or prospect of success in his application either.

18.As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in the decision being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

19.In the present case the Board for its detailed analysis and reasoning in paragraphs 22 – 37 of the decision rejected the applicant’s claim based on its adverse finding on his credibility of which the applicant failed to elaborate or substantiate at the oral hearing when he declined to give evidence.  In the absence of any error being identified by the applicant and having considered the Board’s decision with rigorous examination and anxious scrutiny, I do not find any reasonably arguable basis to challenge those findings of the Board.

20.Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Mozambique, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21.In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the applicant’s claim.

22.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason for his delay I refuse to extend time and accordingly dismiss his leave application.

Dated the 4^th day of April 2019.

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