Sambo Devis Xavier v. Torture Claims Appeal Board

HCAL 2161/2019

[2024] HKCFI 3291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2161 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Mozambique who arrived in Hong Kong on 9 December 2015 as a visitor with permission to remain as such up to 27 December 2015 when he did not depart and instead overstayed, and some 9 months later on 6 September 2016 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to he would be harmed or killed by his uncle over their land and business disputes in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Maputo, Mozambique where he inherited some farmland and a garment business from his father and which were managed by his mother for him during his childhood.

3.When he reached the age of 20 and took over the farmland and the garment business from his mother, the Applicant hired workers to work on the farmland to grow fruits and vegetation, and also travelled to various places to purchase stocks and goods for the garment business.

4.However, his uncle had always coveted his father’s farmland and business by raising issues disputing the Applicant’s interest in them, and even made threats against him to try to force him to give them up to his uncle, to which the Applicant always resisted.

5.Eventually in 2015 his uncle started to come to his home at night with unknown men to threaten and beat him that caused him to suffer cuts and bruises, including one particularly terrifying attack in August 2015 when his left leg was severely slashed with machetes by those men that he had to be taken to the hospital for emergency treatments, but still the Applicant refused to yield to his uncle’s demand.   

6.In early December 2015 while he was on a trip to Hong Kong for purchasing goods for his garment business, the Applicant was informed by his mother on the phone that his uncle had again come with his men to look for him and with an ultimatum that if he still refused to hand over his land and business, his uncle would have him killed once and for all.

7.As a result the Applicant was afraid to return to Mozambique and therefore overstayed in Hong Kong, and some 9 months later in September 2016 he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.By a Notice of Decision dated 30 July 2018 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”).

9.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 followers upon his return to Mozambique as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of his uncle to seriously harm or kill him other than to press him to give up his land and business, that in any event it was a private personal dispute between the 2 of them only 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 30 million people spread across a vast territory of more than 786,000 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 Beira where it would be difficult if not impossible for his uncle to locate him.

10.On 7 August 2018 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 11 July 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his uncle over their land dispute that caused him to overstay in Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 9 months later from his overstay, and concluded that there are no substantial grounds for believing that the Applicant would be subjected to any harm or ill-treatments from his uncle as alleged that his claim for non-refoulement protection failed on all applicable grounds.    

12.On 29 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 his supporting affirmation of the same date, nor was he able to do so at the hearing of 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.

13.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.

14.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 38 – 49 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

15.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Mozambique, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

16.In the premises, and 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.

17.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 26^th day of November 2024

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