Rodrigues Luis v. Torture Claims Appeal Board

HCAL 1996/2019

[2023] HKCFI 3161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1996 OF 2019

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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 53-year-old national of Mozambique who arrived in Hong Kong on 7 September 2016 as a visitor with permission to remain as such up to 21 September 2016 when he did not depart and instead overstayed, and on 26 September 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Mozambique he would be harmed or killed by his uncle and cousin over their land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Jangamo, Mozambique where his grandfather owned some farmland which were later inherited by the Applicant’s father and uncle with a bigger share to the Applicant’s father being the elder son but which had led to a bitter dispute from his uncle who considered the distribution unfair for years even before the Applicant was born.

3.After leaving school the Applicant got married and raised a family with 2 children by working on his father’s share of the farmland which was subsequently passed on to him after his father passed away in 1995 from what the Applicant suspected to be poisoned by his uncle over their land dispute, and thereafter his uncle and son turned their hostility towards the Applicant by frequently harassing and threatening him over their demand for a re-distribution of the land.

4.One day in January 2012 while working on his farmland, his uncle’s son came with some men to quarrel with the Applicant, during which his cousin pulled out a pistol and shot and severely injured the Applicant who then lost consciousness and was subsequently taken by his family to hospital where he was hospitalized for one month.

5.Upon his eventual discharge from the hospital, the Applicant was afraid to return to his home and instead took shelter in a friend’s place, and later in 2012 he departed Mozambique for Senegal where he stayed and worked for 4 years, during which he heard that his uncle had taken possession of his farmland in his absence.

6.In 2016 the Applicant returned to Mozambique to renew his passport, but when he heard that his uncle and son were still looking for him everywhere, the Applicant felt it was still not safe to remain in Mozambique, and so on 22 August 2016 he departed for China and then Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 11 January 2019 the Director of Immigration (“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 his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle and son upon his return to Mozambique as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that his uncle had already taken over the land in dispute since he left the country that it is not accepted that his uncle would still have any adverse interest in the Applicant, that in any event it was a private land dispute between them within their family 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 26 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 working experience to move to other areas of the country away from his home district in large cities such as Nampula or Tete where it would be difficult if not impossible for his uncle or cousin to locate him.

9.On 22 January 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 11 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from his uncle and cousin over their land dispute that caused him to flee from his country to come to Hong Kong for protection, and that in any event it was a private land dispute between them within their family without any official involvement that state or police protection would be available to the Applicant upon his return to Mozambique as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.On 15 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 their decisions 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the fact is 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 if real 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.

14.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.Moreover, the Applicant recently on 19 October 2023 filed an affirmation requesting to close his case as he has already resolved his problem in his home country.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no problem returning to his home country, I accordingly dismiss his leave application.

Dated the 7^th day of December 2023

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