Case Document

100%Judiciary

HCAL 1562/2018

[2020] HKCFI 1844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1562 of 2018

BETWEEN

	Mendes Nelson	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 30 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant was absent at the hearing. I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a national of Bissau-Guinean. He came to Hong Kong on 6 June 2009 as a visitor. He overstayed since 5 July 2009 and was arrested by police on 4 September 2009. On 6 September 2009, he lodged a non-refoulement claim.

5.He claimed that if refouled, he would be harmed or even killed by his paternal uncle, Jude, due to a land dispute where Jude wanted to occupy his house and land.

6.His father passed away in February 2009 and left him a farmland and a house. Jude claimed that he should have them and asked him to surrender them to him or he would kill him. He ignored him, thinking that he was not serious. A week later, Jude came with some people and claimed the land. He had a verbal dispute with Jude. Then there was a fight and he and his brother, Michael were beaten up. He had some bruises and swellings on his body. He did not report this matter to police. Shortly after that incident, Jude came again with other people at night with machetes. He and his brother jumped out of the window and fled. He lived in his friend’s place for one month. During this period of time, he lived in fear. He then flew to Nigeria from where he came to China and then to Hong Kong.

The Director’s Decisions

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

a.risk of torture under Part VII C 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 4 May 2015 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as he claimed if he returned to Guinea-Bussau was low [14]; that state protection was available to him [18] and internal relocation was an option open to him [22].

9.By Notice of Further Decision dated 27 June 2017 (“the Director’s Further Decision”), the Director found that his claim under BOR2 risk was not established.

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decisions. He was legally represented and attended a hearing before the Adjudicator on 26 March 2018. He elected not to testify from the witness box, but questions raised by the Board and the Director were answered via his duty lawyer after taking instructions from him.

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

12.The Board considered the applicant’s evidence and found that because he did not make a torture claim at the first available opportunity, the Board harboured doubt in his claim, relying on Usman butt, Sunil Koirala, Wasim Ashraf & Others HCMA 70, 114, 244, 379, 402/2010 at §41 and Section 37ZD of the Ordinance [31]. The Board had also considered the issue of internal relocation and concluded that since there had been a lapse of 9 years, it did not believe that Jude would still be interested in him [18].

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 7 August 2018 for leave to apply for judicial review of the Board’s Decision.

14.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

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.The Board had considered his duty lawyer’s submissions on his behalf. It did not accept that the applicant’s claim was genuine and that it did not accept the veracity of his evidence. Although the Board had raised a number of rhetorical questions and it appears unfair for those questions not put to him for his own explanations. However, factoring this irregularity into consideration of the factual scenario as a whole, I fail to see that the applicant has established any reasonable prospect of success in his intended judicial review. See Peter Po Fun Chan (2007) 10 HKCFAR 676 §14.

17.The Board was entitled to discredit the veracity of the applicant’s claim and that internal relocation was an option open to him.

18.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.

19.Other than the comments that I have made above, the Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

CONCLUSION

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

Dated the 4^th day of August 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 4/8/2020 Mendes Nelson 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 4/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1517/15/5/49/GNB2 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 658/14 & RBCZ/90001830/17 (formerly RBCZ/2283/09) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)