Case Document

100%Judiciary

HCAL 1734/2018

[2020] HKCFI 1109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1734 of 2018

BETWEEN

	Tembe Victor Carlos	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 22 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV 8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant failed to attend the hearing on 24 December 2019 without any prior notice or explanation. I shall proceed to consider his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Board as interested party.

The applicant

4.The applicant is a Mozambican national. He came to Hong Kong on 1 December 2015 as a visitor and was allowed to stay until 15 December 2015. He overstayed and surrendered to the Immigration Department on 17 December 2015. He lodged a non-refoulement claim on 23 August 2016.

5.He claimed that if refouled, he would be harmed or even killed by the people of a Communist Political party called Mozambique Liberation Front (“Frelimo”) due to the political dispute of his father with Frelimo.

6.Frelimo and an Anti-Communist political faction named Mozambique National Resistance (“Renamo”) were rival parties. Frelimo is now the ruling party in Mozambique. His father was a supporter of Frelimo. He later converted into Renamo. He was a soldier in a civil war. Frelimo had been looking for his father because they believed he was in possession of documents or videos of what they had done during the civil war. His father denied having such evidence. But the Frelimo did not believe him. The applicant and his other siblings were moved around by his father in order to avoid the Frelimo people. In 2014, his father was killed by the Frelimo people. His other family members had fled for their own safety. He was afraid that without his father ‘s protection, he would be killed by the Frelimo people. He therefore came to Hong Kong in 2015.

The Director’s Decision

7.The Director considered his application in relation to the following risks:

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

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

8.By Notice of Decision dated 9 March 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks as he alleged if he returned to Mozambique was low [10]; that state protection was available to him [13] and that internal relocation was an option open to him [19]. His claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 21 February 2018.

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and found that it was not satisfied that the applicant had discharged his burden of establishing that he faced a real risk of harm that would warrant international protection, now or in the reasonably foreseeable future if he returned to Mozambique and that all the risked he claimed were far-fetched and fanciful. See §§45-56 of the Board’s Decision.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 23 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, he did not set out any grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.

16.The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.

CONCLUSION

17.I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.

Dated the 10^th day of June 2020

	(Mike Mak)
	for Registrar, High Court

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:
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)).		Sent to the Applicant on 10/6/2020 Tembe Victor Carlos Applicant’s ref. no: Nil.		Sent 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 10/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6658/17/3/313/MOZ4 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2633/16 (formerly RBCZ/12978/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)